Majority
p. 638Gihon v. Fryatt & Campbell. March 10, 1849.
Headnote
On a motion to set off one judgment against another, the effect of which will be to deprive the attorney of one of the parties of his costs, the court will dispose of the motion according to its views of what is right, under the circumstances.Where the judgment sought to be extinguished in such a case, was for costs only, the court refused to order a set-off.
This was a motion by the plaintiff to set off a judgment for costs, about to be entered in favor of the defendants, against judgments held by the plaintiff against those parties. The facts appear in the judgment of the court.
Gihon sued Fryatt & Campbell, and a judgment in case of a nonsuit was rendered against him. The judgment is not yet entered, or the costs taxed. It appears that Gihon is the owner of former judgments obtained by him against Fryatt
p. 639
& Campbell, and now moves to set off enough of those judgments, against the one about to be entered in this suit for costs, to extinguish the amount of the latter. The motion presents the question how far the court, in such a case, will protect or regard the attorney’s costs of suit. The subject was before us some time since, in Smith v. Lowden, 1 Sand. 696, and the principle was stated that where the application is by way of motion to set off the judgments, we will dispose of each case according to our own views of what is right upon the circumstances.
When the question arises on pleadings in a suit, the rules of law must govern ; but where the application is to the discretion of the court, we will decide it as shall be just. The court cannot fail to see, that although technically the costs belong to the party, yet in point of fact they belong to the attorney, and we mean to adhere to the rule giving effect to the substantial rights of the parties.
Here all the judgment (it being a judgment in case of nonsuit,) really belongs to the attorney.
Motion denied.