delivered the opinion of the court.

This is a suit by replevin commenced before a justice of the peace in the city of St. Louis on the fifth day of June, 1886. The property described in the complaint was taken from the defendant and delivered to the plaintiff by the officer in charge of the writ. The cause was tried before the justice where the plaintiff had judgment for possession and one cent damages. The defendant *330appealed to the circuit court, where, upon trial before the court, sitting as a jury, judgment was rendered for the defendant, assessing the value of the property at one hundred dollars, and the damages for taking and detaining the same at one cent. This was on the seventeenth day of May, 1887; on the fourteenth of June following, a motion for a new trial was overruled. On the twenty-second of the same month the defendant Zimmer for value assigned and set over to Hugo Muench by proper entry of record the judgment so obtained by him ; on the twenty-third of the same month C. A. Schnacke, who, it appears, was the security for the plaintiff on this replevin bond, and upon which the judgment was rendered in the circuit court, filed an application to be allowed to set off the judgment against him on the bond with, a judgment rendered in his favor against this defendant on the twenty-ninth of September,. 1877. This the court overruled and after an unsuccessful motion to set aside and for rehearing Schnacke appeals from the order of the court of July 9, overruling his motion.

While there are several questions raised by the record, it is conceded that the controlling point to be decided is as to the action of the trial court in refusing to permit the security in the replevin bond to set off the judgment obtained with another judgment rendered against this defendant and in favor of said security in a former proceeding. This involves the construction of -the following statute:

“If ,any two or more persons are mutually indebted in any manner whatsoever, and one of them commences an action against the other, one debt may be set off against the other, although such debts are of a different nature.” Rev. Stat., sec. 3867.

We are unable to see wherein this statute applies to the case at bar. The judgment below was for the return of the property taken by virtue of the replevin writ or payment of the assessed value thereof, at the election of the party injured. The election is not made until the *331property is delivered to the constable on execution, and if not delivered within ten days after execution issued, the plaintiff may cause the assessed value thereof and the damages and costs to be levied of the property of the defendant and his sureties. Rev. Stat., secs. 2900, 2903, 2904. True, in a certain event, the security in the replevin bond may be required to pay off and discharge this judgment, but it does not follow by reason of the-fact that he comes within the purview of the above sections. Schnacke does not bring this action against defendant, nor has defendant brought an action against him. Schnacke’s liability, therefore, depends entirely upon the discretionary action of the defendant. There is no mutuality in the judgments, so that no setoff could exist. Rev. Stat., sec. 3878; Tagg v. Bowman, 99 Pa. St. 376. But the appellant insists that he has an equitable remedy also. If he has, it cannot, in this case, be by motion. The record shows an assignment of the judgment to Muench and also a claim of exemption on the part of defendant Zimmer. If Schnacke is seeking equitable relief he must institute such proceedings as would protect the rights of all parties. Certainly Muench must have notice and be brought into court to enable the court to determine his rights. It is unnecessary to discuss the matter further or cite authorities.

The judgment of the circuit court is affirmed.