(a) In a civil action for trespass to real or personal property or for a tort, unaccompanied by force, resulting in consequential injury, a defendant may set off against any judgment rendered against him any debt which he holds, jointly or severally, against the plaintiff, subject to the conditions contained in subsections (b) and (c) of this section.
(b) (1) This section shall not apply to a civil action for damages for taking property exempt from execution.
(2) No debt which was acquired by a defendant by purchase or assignment after the accruing of the cause of action upon which the judgment is rendered may be allowed as a set-off under this section.
(3) An assignment of the judgment by the plaintiff shall not affect the right of set-off and any such assignment shall be taken subject to the right of set-off.
(4) Any such set-off shall be claimed by filing a complaint in the court in which the judgment has been rendered within twenty-four hours after final judgment.
(5) No set-off may be allowed in cases where the defendant had the right of set-off on the trial of the case.
(c) (1) The court shall make any proper set-off immediately if the debt claimed is admitted by the plaintiff or evidenced by judgment.
(2) If a claimed set-off is not admitted or evidenced by judgment and is denied by the plaintiff, it shall not be allowed unless the defendant has instituted a suit therefor prior to the rendition of judgment in the original action. If any such suit is pending at the time of rendition of judgment for the plaintiff in the original action, the court rendering judgment shall stay execution thereon until the final termination of the suit. Upon termination of the suit, the court shall allow the set-off in the original action in accordance with the amount adjudged to be due on the set-off claim in the suit.
(1949 Rev., S. 7863, 7864; P.A. 82-160, S. 57.)
History: P.A. 82-160 rephrased the section and inserted Subsec. indicators.
No set-off can be allowed in trespass for levying on exempt property, though part of it was not exempt. 33 C. 236. Construction of clause de “taking” property exempt from execution. 45 C. 567. Set-off in tort actions generally. 66 C. 500; 82 C. 362. Unless procedure followed, right is waived; but equitable principles governing in receiverships may require set-off to be allowed. 78 C. 443; Id., 450. Cited. 221 C. 912; 225 C. 146; 233 C. 460.
Cited. 26 CA 322.
Cited. 5 CS 146.
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