Appeal from an order denying the defendant's motion to recall execution issued by plaintiff. *Page 628
The case is as follows: In two suits brought by the plaintiff against the defendant in the court below, judgment was entered in the one for the plaintiff, for the sum of $307.75, and in the other, for the defendant, for the sum of $134.75; and, on appeal, both judgments were affirmed by this court February 13, 1899. Notice of motion to offset the defendant's judgment was served on plaintiff's attorney February 23d, and came on for hearing March 18th, of the same year; but by reason of the remittitur not being filed, the motion was dropped from the calendar and the hearing continued. Afterwards, an execution having been issued by the plaintiff, an order was made by the court, on motion of defendant, that defendant show cause, at the time named, why the execution should not be recalled and annulled, or otherwise disposed of, as to the court might seem just; and on the hearing defendant's motion was denied. The affidavits of the parties show, without contradiction, the existence of defendant's judgment, and that it is unsatisfied. These facts clearly entitled her to have the amount of her judgment credited on that of the plaintiff; and while the motion was pending the issue of execution for the full amount of plaintiff's judgment was improper. Nor was he entitled to exact of the defendant the payment of the balance as a condition of allowing the offset. His debt was discharged pro tanto, and he was entitled to execution for the balance only. (Code Civ. Proc., sec. 440; Black v. State,36 Ga. 447;1 Haskins v. Jordan, 123 Cal. 157.)
We advise that the order appealed from be reversed and the cause remanded, with directions to the court below to stay the plaintiff's execution until the decision of the pending motion of defendant to offset her judgment.
Cooper, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the order appealed from is reversed and the cause remanded, with directions to the court below to stay the plaintiff's execution until the decision of the pending motion of defendant to offset her judgment. McFarland, J., Henshaw, J., Temple, J.
1 91 Am. Dec. 772. *Page 629