Rust v. Burke, Turner & Co.

57 Tex. 341, 1882 Tex. LEXIS 143

• Court: Texas Supreme Court
• Decided: June 16, 1882
• Docket: Case No. 3190
• Status: Published

Opinion

Stayton, Associate Justice.

The pleading setting up counterclaim in this cause Avas very defective, and upon special exception thereto could not have been sustained, but Avas not so defective as to permit no defense to the action, and proof having been admitted under the same, the only question necessary to be considered arises upon the sufficiency of the proof to sustain the defense.

The note sued upon was given by Rust to Zorn, and was by him transferred .to the appellees after maturity and with notice of the claim held by the appellant against Zorn.

The counterclaim put in evidence by Rust consisted of a judgment recovered by N. W. Taylor against M. B. George and Joseph Zorn, which bad been transferred by Taylor to the appellant Rust.

It seems that George was primarily liable upon that judgment, for Zorn had judgment therein against George; but both George and Zorn were liable therein to Taylor, and the judgment ivas so entered.

It is claimed that the judgment against George and Zorn could not be made available in counterclaim by Rust, because'not a judgment against Zorn alone; and this is the only question which we need further consider.

It is well settled that, as a general rule, a set-off of a separate debt against a joint debt, or of a joint debt against a separate debt, Avill not be alloAved (Henderson v. Gilliam, 12 Tex., 74); but the judgment owned by Rust, and offered in evidence, creates a separate demand against Zorn as well as against George, and may be enforced against one or both of them.

“ When two or more parties enter into a joint and several bond, it becomes the separate debt of each, and may therefore be set off by the obligee in an action brought against him by either of the obligors.” Waterman on Set-off, sec. 210; Dunn v. Wist, 5 B. Mon., 376; Culver v. Barney, 14 Wend., 161; Stadler Bro. & Co. v. Parmlee & Watts, 10 Iowa, 28.

“ When each one of several defendants against whom a judgment is rendered is liable for the payment of the entire demand, such judgment may be set off against a judgment obtained by one of the defendants against the holder of the first-named judgment.” Waterman on Set-off, sec. 212; Hutchins v. Riddle, 12 N. H., 464.

The record shows that notice of appeal was given in the case of Taylor-against George and Zorn, but does not show that an appeal was ever perfected; this fact cannot be. presumed; and that must be held to be a subsisting judgment until the contrary is shown.

The judgment offered in evidence by Rust in set-off amounted to more than the note sued upon, and judgment should have been rendered in favor of appellant; and ordinarily judgment in such case Avould be here rendered as the court below should have done, but as it appears that notice of appeal was given in the case of Taylor v. George and Zorn, the judgment will be reversed and the cause remanded, that appellees may have an opportunity to show,' if they can, that that judgment has been set aside.

Beveesed and bbmanded.

[Opinion delivered June 16, 1882.]