Layne

This isan original proceeding in mandadmus asking that the trial court be directed to grant petitioner's motion to offset his judgment against a judgment for the defendant in an action entitled Layne v. Kirby.

In the action referred to petitioner as plaintiff commenced an action for libel in which the demurrer of .defendant Kirby was sustained. Plaintiff appealed to the Supreme Court, which reversed the .judgment and awarded plaintiff costs amounting to $325. The remittitur duly followed and, no motion to tax costs having been made, judgment was duly entered in favor of plaintiff in the superior court on February 26, 1930. Execution issued upon this judgment and was returned unsatisfied. Thereafter the cause came to trial and defendant obtained a judgment including costs in his favor in the sum of $128.40. Thereafter the plaintiff moved the superior court for an order setting off so much of the judgment of said plaintiff against the judgment of said defendant as it became necessary to satisfy defendant’s judgment in full." Said motion was denied upon the ground that the judgment for defendant on the trial of the action nullified the former judgment for costs entered in the…