Voss v. McGuire

Philips, P. J. The only ground, as I understand the position of the plaintiff, for sustaining the action of the trial court in refusing to tax the costs against the plaintiff is, that the defendant failed to keep his tender good. In other words, by obtaining the money from the clerk, as he did, he lost the benefit of the tender. In this construction of the statutes, I am unable to concur. I. The rule of law respecting the necessity of keeping the tender good has no application to the facts and situation of this case. It apjfiied to common law tenders, and the making proferí of the money at the trial. Where, in such case, tender is made before suit brought, the party, to make it avail, must bring it into court and renew7 the offer there at the trial. In the case of such tenders, the - party must thereafter keep his tender good by being ready at all times to respond to the demand of the other party for the money. If not in readiness with the money so tendered to pay it over at the election of the other, whenever demanded, he loses the benefit of any advantage sought to be secured by the tender. ITidd’sPr. 619,624; 3 Black. Com. 304, note 22 ; Brickett v. Wallace, 98 Mass. 528; Moher v. Stoner, 11 Ia. 30; s. c., 14 Ia. 115; Berthold v. Reyburn, 37 Mo. 587, 595. These are instances where the money, [457] after tender and refusal, remains in the hands of the party making the tender. It is thus under his control, and he may thereafter so deal with it as to forfeit any right secured by the tender. Not so, where the tender is made under the statute in question (Rev. Stat., sect. 2924), which is as follows: “If, at any time after the commencement of suit, the defendant pay the constable the full amount which he owes the plaintiff up to that time, together with all costs then accrued, and the suit be not discontinued, but be further prosecuted, and the plaintiff shall not recover judgment for a larger amount, exclusive of interest and ■costs since accrued, than -the sum so paid to the constable, then the plaintiff shall pay all costs accruing after such payment.” This is a payment to the constable, for the benefit of the plaintiff. By the express terms of the statute it discharges the defendant from liability for accruing costs, if “ the suit be not discontinued.” By the payment to the constable, without qualification, the defendant lost all control over the money so paid. He had no right to re-take or claim it. It had passed into the custody of the law, and was thereafter subject alone to the demand of the plaintiff, for whom the constable held it. As said in Bowie r>. Holdridge (20 Ind: 209), “the payment of the money into court, therefore, by Holdridge, was the payment of the amount to Sowle. The.money became at once his, and at his risk. He could, at any time, take it out of the court, but Holdridge could not. His power over it ceased; ” citing Murry v. Bethune, 1 Wend. 191; Reed v. Armstrong, 18 Ind. 446. In Murray v. Bethune, the court say : “It was a payment pro tanto. The plaintiff had a right to take it out of court, and the defendant had not.” In Reed v. Armstrong, the court say: “ A tender, followed by bringing the money into court, is regarded as a .payment at the time, and the person pleading it cannot withdraw the money so deposited, whether the verdict be for the same [458] or a greater amount than the sum tendered, but the amount must be paid to the plaintiff.” By paying the money do the constable, it became so much the property of the plaintiff that, even had he recovered judgment for a less sum, the court could not have ordered the excess paid back to the defendant. The plaintiff was entitled to the sum so paid as the-amount confessed to be due and owing the plaintiff. The only issue in such case being as to the excess owing by defendant above the sum tendered. Sweetland v. Tuthil, 54 Ill. 515. The corresponding provision of the statute ( Rev. Stat., sect. 1009), concerning suits in the circuit court, providing for the deposit with the clerk, for the use of the plaintiff, of th'e sum due, as constituting a complete bar to the recovery of any subsequent costs, clearly indicates the mind of the law-maker in drafting these provisions. The money so deposited is in custodia legis, for the sole- and exclusive use of the plaintiff, and is beyond the control of the depositor. The payment to the constable or the clerk, ipso facto, concludes the plaintiff from imposing any other costs on the defendant by further prosecution of his action, in the event he has judgment for no-greater sum than the deposit. II. There is no provision of law for the act of the constable, in this case, in turning the-money over to the-clerk of the court. It was a voluntary, unauthorized act. The clerk held it as a mandatary for the constable. The constable alone could demand' it of the clerk. The constable was answerable to the plaintiff therefor. And it would be no defence for the constable, when called upon by the plaintiff for this money, to plead that he had turned it over to the clerk and the defendant had gotten it from the clerk. The legal status of the money so deposited was fixed by the act of the defendant in paying it to the constable. No subsequent wrongful act of his in obtaining possession of it could alter that relation. It was in custodia legis, and the officer must answer for [459] it. Moreover, as the surrender of the money by the-clerk was an unauthorized proceeding, and the defendant made restitution of the same before final trial, thereby placing the parties in statu qtto, and this, too, after the plaintiff: had refused to receive the money from-the constable, the legal status of the tender remained, in, contemplation of law, unaffected. Storer v. McGaw, 11 Allen, 527. In Klein v. Keys et al. (17 Mo. 327), the court recognized the distinction, as asserted in this opinion, between a tender made under the statute, and at common law. Scott, J., said: “Under this section it was not necessary, after a tender, to bring the money into court, nor to show that the defendant had always been ready to pay; the tender before suit brought only affecting, the matter of costs.” Both law and good conscience are against the attempt of the plaintiff, after his persistent litigation and refusal to accept the tender, to impose the costs of his-vexatious contention upon the defendant, who, as the sequel shows, was in right throughout. III. The payment of the money to the constable of the township wherein the justice presided was proper. This becomes quite apparent by reference to section 2922. The first section provides for payment in case of tender before suit brought. If the plaintiff thereafter, will sue, the defendant may then deposit the amount so tendered “with the constable of the township in which the suit is brought.” This is followed by section 2924, providing for tender after suit brought; and the draftsman having in mind the provision in the preceding section, where the constable is designated, says: “If the defendant pay to the constable.” The constable of the township where the justice presides is the proper depositary, as the plaintiff generally resides there, and the constable of such township is the one to act ministerially in, and about, the court, the place of trial. [460] The judgment 'oí the circuit court is reversed and the cause remanded, with directions to sustain the motion, and to adjudge the costs accordingly. Hall, J., concurs ; Ellison, J., dissents.