Kellogg v. Pierce

Cassoday, J. It is very evident that the circuit court determined the question of costs against the defendant on the theory that the statute was the same as when Erd v. C. & W. W. R'y Co., 41 Wis., 65, was decided in 1876. Accordingly it was held that, because the plaintiff recovered as damages a greater sum than the amount offered, he was entitled to full costs. But immediately after- that decision, and apparently in consequence of it, the statute was changed in that regard to substantially what it now is. Ch. 285, Laws of 1877; secs. 3627, 3628, R. S. Since that change in the statute a refusal by the plaintiff to accept the offer for judgment, and his failure “to recover a more favorable judgment than he would have done by accepting the offer,” prevents him from recovering for' any costs made after the offer, and subjects him to the payment of such costs to the [344] defendant. ' It requires no mathematical calculation to demonstrate that the offer of $80, February 21, 1880, was more favorable to the plaintiff thau $68.87, with interest thereon from October 27,1879 to that time, would have been. This being so, there can be no question but what the plaintiff was entitled only to such taxable costs and disbursements as had accrued prior to the offer, while the defendant was entitled to all such taxable costs and disbursements as accrued after the offer, and the amount of the same are to be deducted from the sum of the damages and costs to which the plaintiff was entitled, and for the balance only judgment's to be entered. By the Court.— That portion of the judgment appealed from is reversed, and the cause is remanded with direction to enter judgment in accordance with this opinion.