Driesbach v. Morris

Mr. Justice Mercur delivered the opinion of the court This contention is whether the plaintiffs are entitled to full costs. It arises under the Act of 9th April 1833. So much of the second proviso as is applicable to this case declares if the defendant either on the trial of the cause before the justice or before an appeal is taken, shall offer to give the plaintiff a judgment for the amount which the defendant shall admit to be due, which offer it shall be the duty of the justice to enter on the record, and if the plaintiff or his agent shall not accept such offer, then and in that case if the defendant shall appeal, the plaintiff shall pay all the costs which shall accrue on the appeal, if he shall not, in the event of the suit, recover a greater amount than that for which the defendant offered to give a judgment; and in both cases the defendant’s bill shall be taxed and paid by the plaintiff, in the same manner as if a judgment had been rendered, in court for the defendant. The offer to confess judgment must be shown by the record. It is the only evidence of the offer: McDowell v. Glass, 4 Watts 389; Seibert v. Eline, 1 Barr 38; Gardner v. Davis, 3 Harris 41. In the present case, the record shows the judgment-was recovered before the justice on the first day of February 1876, the offer to confess judgment was made on the 12th, and on the 14th the defendants appealed. The record fails to show that the plaintiffs had any notice of this offer. The act does not declare by whom the notice shall be given, whether by the defendant or by the justice; but it clearly requires- that the plaintiff shall be notified in order to affect him by the offer. He must necessarily be notified before he can be prejudiced by not accepting. The record does not show the plaintiffs to have been present when the offer was made on the 12th. The justice swears he was .not. That evidence is uncontradicted. The defendant swears he made the offer on the day the judgment was rendered, and afterwards on the same day notified the plaintiffs. ' This the plaintiffs denied under oath. As the record shows, the offer of judgment was not made until the 12th, ahy notice given on the first could have no effect. The record [26] cannot be impeached except for fraud, and that is neither shown nor alleged. We think a correct interpretation of the statute requires the record also to show notice to the plaintiff or his agent of the offer to confess judgment before the plaintiff can be affected by it. This is the only rule which will give a proper effect to the whole record and harmonize with public policy. If no response be made within a reasonable time after notice, it may well be construed as not accepting. There should be no enlargement of the rule to supply by uncertain parol evidence what the record should show: Foss v. Bogan, 11 Norris 296. The learned judge therefore erred in making absolute the rule to show cause why the defendant’s bill of costs, since' the appeal should not be set off against the plaintiffs’ verdict. The plaintiffs are entitled to full costs. Judgment reversed and rule discharged.