Smith v. Thewalt

Oassoday, O. J. The entry of the judgment is sought to be justified by the statute. Sec. 2789, Stats. 1898. It is conceded that, about the time the defendant was required to answer, he served “upon the plaintiff an offer, in writing, to allow judgment to be taken against him for the sum . . . therein specified, with costs,” as prescribed in the first clause of that section. It is, moreover, conceded that the plaintiff did not accept such offer until seven and one half months afterwards. The defendant claims that, as the pla.int.iff [178] failed to “accept the offer and give notice thereof in writing, . . . within ten days” after the offer was made, he must be “deemed” to have “withdrawn” the offer; and hence that the order for judgment was made without authority of law. This claim is based, upon the portion of the section which declares that: “If the plaintiff accepts the offer and give notice thereof in writing, before trial, within ten days, he may file the summons, complaint and offer, with an affidavit of service of the notice of acceptance, and the clerk must thereupon enter judgment accordingly. If notice of acceptance be not given, the offer is deemed to be withdrawn and cannot be given as evidence nor mentioned on the trial, and if the plaintiff fail to obtain a more favorable judgment he cannot recover costs, but must pay defendant’s costs from the time of the offer.” The first portion of this language is not as clear as it might have been, but the obvious purpose of the section was to. prevent a trial and to authorize the plaintiff to “enter judgment” without trial in case he accepted the offer and gave notice thereof in writing within the time therein specified. Of course, to prevent a trial and authorize such entry of judgment, the acceptance, as well as the offer, had to be made before trial. The acceptance was to be “within ten days” after ■some other occurrence; and that other occurrence was obviously the defendant’s offer to allow judgment. This is made more clear by the last portion of the section, which provides ■that, “if notice of acceptance be not given, the offer is deemed •to be withdrawnand the case, is then for trial, with the liability of the plaintiff to pay the “defendant’s costs from the time of the offer,” in case he fails “to obtain a more favorable judgment” than was thus offered. Such is the construction given by this court to substantially the same statute many years ago. Sellers v. Union L. Co. 36 Wis. 398, 401. The same construction is placed upon the section in Bryant’s Wis. Code Pr. § 536. It is there said that the plaintiff “must give notice within ten days after service of the offer, or he is [179] deemed to have rejected it.” We must bold that- tbe defendant’s offer to allow judgment was rejected by tbe plaintiff several months before tbe plaintiff gave notice of acceptance; and bence that the order upon which tbe judgment was entered was made without authority of law. By the Gowrt. — The judgment of the circuit court is reversed, and the cause is remanded for trial.