Frye-Bruhn Co. v. Meyer

BROWN, District Judge.

Among the conclusions of law in said cause No. 849 it may be well first to call attention to No. 4, which is in the following language:

“That the complainant is not entitled to a money judgment against the defendant, and the defendant is not entitled to a money judgment against the complainant, as respectively prayed for in the bill and answer. * * * ”

—And the further finding that the sum then in the hands of the clerk of this court forming the copartnership property not distributed “was the property of the copartnership at the time of the several acts of dissolution, and shall be divided between the parties to this action in the proportion of 45 per cent, and 55 per cent, respectively.”

The pleadings and decree of the court in cause No. 849, as set-out in the plaintiff’s reply, demonstrate beyond any question to the mind of this court that no judgment was ever entered in said cause-No. 849, but that a decree was entered in that action requiring funds that were then in the hands of the clerk and in the depository of this court to be divided as copartnership property, as therein directed, viz., 45 per cent, to Meyer and 55 per cent, to the Frye-Bruhn Company. It is obvious that this was not a judgment for the payment of money by the FryeBruhn Company on which an execution could be issued. To offset one judgment against another there must be a money judgment on which an execution might issue requiring the *81payment of a sum of money by the defendant in said action, or that a levy might be made upon the property of the defendant in order to secure the payment of the judgment rendered. In such a case, where such a judgment is entered that an execution might issue, there is no question whatever but what in an action by the defendant against whom such an execution might run such defendant, having a foreign judgment or demand as a general creditor at the same time against the plaintiff in said judgment, may upon a proper showing have an injunction to restrain the collection by execution of said former judgment until judgment might be obtained by the general creditor, and the offset properly effected, as prayed for in this bill. But in order to plead an offset there must be some debt that may be set off. In this case there is no debt owing by the Frye-Bruhn Company to Meyer as the result of said decree — nothing to be paid by the Frye-Bruhn Company to Meyer. The decree is for the division of copartnership funds then in the hands of the court. Under such- conditions there can be no set-off, because there is no mutual debt; there was. no other judgment requiring the payment of money by the general creditor.

This would seem, necessarily, to end any contention that the plaintiff might make, without any further consideration, of matters presented. But there is another proposition that seems to make the attempted proceedings here improper, and that is the nature of the proceeding itself. It- is sought to restrain the distribution of a fund already in custodia legis, and to restrain proceedings under a decree entered in this court ordering such distribution. Of course, the execution of judgments may be restrained under some circumstances, where they have been obtained by fraud and the like; but to undertake to restrain the division of funds in a case where the entire matter has been disposed of by the decree of the court is in.my judgment a reprehensible practice, and one that should not ordinarily, with*82out the clearest reasons therefor, be allowed. Jones v. Merchants’ National Bank, 76 Fed. 687, 22 C. C. A. 483, 35 L. R. A. 698.

The court does not, however, in any way indicate that the fund under the control of this court and in the depository thereof might not be reached in a proper proceeding. A suit in the form of a creditors’ bill, wherein it is alleged that judgment had been obtained in this jurisdiction, execution issued, and no property found, the insolvency of the defendant, and the existence of the fund which might be properly subjected to the payment of the claim against the creditor, might reach the fund even in this case; but that is not this proceeding. No judgment has been obtained in this court, and the fundamental requisites of a creditors’ bill are wanting in the case made by the pleadings herein.

From the views herein expressed, it necessarily follows the temporary injunction prayed for must be denied, and it is so ordered.