Appeal from the Eleventh District.
January 11th, 1858, plaintiff recovered judgment in the Eleventh District, for the sum of seven hundred and forty-one dollars and sixty-three cents, against defendant, besides costs, and a decree of foreclosure. The mortgage property was sold under the decree, leaving a balance due. June 21st, 1858, execution issued for the unpaid balance, and was returned nulla bona, leaving about six hundred dollars still unpaid. October 18th, 1858, defendant recovered judgment against plaintiff in the same Court, for dollars, costs, which judgment was appealed to the Supreme Court, and there affirmed--the costs of both Courts amounting to about one hundred and ten dollars and thirty-three cents. October 19th, 1859, upon affidavit and notice, plaintiff moved to set off the judgment of defendant, and credit the amount on plaintiff's judgment against defendant. Motion denied.
Plaintiff appeals from the order denying the motion.
The three hundred and thirty-sixth section of the Practice Act gives the right to appeal " from any special order made after final judgment," and the same clause gives the right ofappeal " from an order granting or dissolving an injunction."
The judgment in the case in which this motion is made, is for a sum greatly exceeding two hundred dollars. So that case itself, in which the order is made, is clearly one over which this Court has jurisdiction, and having thus jurisdiction over the case, it has jurisdiction over all orders made in the case, provided for by the statute. For instance, an injunction is granted or dissolved. If the action in which the injunction was issued, relates to property exceeding two hundred dollars in value, this Court clearly has jurisdiction of the case, and by virtue of that jurisdiction, over all appealable orders made in the case, and therefore, it properly takes jurisdiction over orders granting or dissolving the injunction, although the amount that may actually be involved in such orders may be a sum under two hundred dollars.
But this Court in these cases, and others of a like character, has entertained the appeals, because the action, in which the orders appealed from were made, involved more than two hundred dollars. The fourth section, article sixth, of the Const. says: " The Supreme Court shall have appellate jurisdictionin all cases when the matter in dispute exceeds two hundred dollars." That is, as we understand, when the " case" itself involves a sum exceeding two hundred dollars, the Court can review any order made in the case. Any other view would deprive the District Court of power to hear a motion of set-off like this. For section 6 provides, that the District Court shall have original jurisdiction only in " cases where the amount in dispute exceeds two hundred dollars." If this Court cannot entertain this appeal, then the District Court could not entertain the motion, although it is a motion made in a case, over which case it has jurisdiction.
This motion to set off cannot be considered an independent action, case, or proceeding. There is no summons or other process, to bring the party into Court, as in an original proceeding, but a simple notice. The power of setting off judgments depends in part upon the general jurisdiction of the Courts over their suitors and process. Opposite demands, arising upon judgments, may upon motion be set off against each other, whenever such set-off is equitable. (Barb. Set-Off, 32, citing numerous cases.)
E. B. Crocker, for Appellant.
A. S. Higgins, also for Appellant.
Tuttle & Hillyer, for Respondent, cited Const., art. 6, sec. 4.
JUDGES: Cope, J., delivered the opinion of the Court. Baldwin, J., concurring.
We cannot entertain the appeal in this case for want of jurisdiction. The judgment which is sought to be set off is for a less sum than two hundred dollars. Appeal dismissed.