Ray v. Gregory

178 S.W. 405, 120 Ark. 50, 1915 Ark. LEXIS 4

• Court: Supreme Court of Arkansas
• Decided: July 5, 1915
• Status: Published

Opinion

Kirby, J.,

(after stating the facts). Appellants contend that the court erred in refusing to allow their judgment against appellee set off against his judgment against them, and in declaring appellee’s judgment exempt from such set-off.

(1-2) It is true that appellee did not claim the amount of his judgment exempt against set-off of the judgment of appellants against him in this proceeding, hut his judgment was for damages for the value of property allowed him by law exempt from execution caused to be sold by said appellants, and of which they received the proceeds, and since the whole proceeding was but to enforce his claim of exemptions and procure the benefit of the exemptions allowed him ¡by law, there was no necessity that a further formal claim or schedule of such judgment as exempt should have been filed at the time of the rendition of the judgments herein. Appellants had appellee’s exempt property sold for the payment of their judgment, and the proceeds of the sale credited thereon. They had the right to have such sale made as the justice had disallowed appellee’s claim of exemptions in the former suit, and he had appealed to the circuit court without giving bond, but since the claim had been properly made and was thereafter allowed by the circuit ¡court, they were bound to the repayment of the value of the property sold after it was held to be exempt from the execution, and this without regard to whether appellee was indebted to them upon their judgment or otherwise. Fultz v. Castleberry, 81 Ark. 271.

(3) “While it is true that judgments for recovery of money may be set .off against each other, the set-off is to be ordered by the court “having due regard to the legal and equitable rights of all persons interested in both judgments.” Kirby’s Digest, section 6238.

No motion was in fact made in the court below for such set-off and no error was committed in not setting said judgments off against each other. Atkinson v. Pittman, 47 Ark. 464.

If appellants were permitted to set their judgment off against that of appellee recovered against them for the value of his exempt property sold by them, he would he deprived of his exemptions and compelled to have the property applied to the payment of the yery judgment against which he claimed it exempt from execution, as he had the right to do. There was no necessity for any further claim of exemption to be made since the complaint set out fully the former proceedings, the judgment obtained and the claim of exemptions made and allowed by the circuit and Supreme 'Courts, and asked damages for the value of the exempt property sold under the execution.

Affirmed.