Rosenberger v. Harper

BIGGS, J. This is an action for damages with an attachment in aid. There was a plea in abatement, and while it was pending, to wit, on the twenty-fourth day of April, 1897, tlie defendant made a written offer under section 2191 of the Revised Statutes of 1889, to allow a judgment to go against him for twenty-five dollars. The plaintiff declined the offer. Subsequently the attachment was sustained, and upon a trial on the merits the plaintiff recovered a verdict for five dollars. The judgment entry recites the offer of defendant, and the [172] court adjudged that the plaintiff pay all costs in the case incurred subsequent to the offer. The plaintiff filed motions for new trial, in arrest of judgment,, and to modify the judgment in respect of the costs. All of the motions were, overruled and exceptions saved. The plaintiff has appealed and waives all objections, except as to that portion of the judgment awarding a portion of the costs against him. The latter clause of section 2191, supra reads: “If the notice of acceptance be not given, the offer shall be deemed withdrawn, and shall not be given in evidence, or commented on before a jury; and if the plaintiff fail to obtain a more favorable judgment, he shall pay the defendant’s costs from the time of the offer.” This statute has not to our knowledge been directly construed by any of the appellate courts of the state. The appellant' insists (Í) that the written offer was insufficient in that it failed to mention the attachment; and (2) that under any circumstances only the costs incurred by the defendant subsequent to the notice could be taxed against appellant. The first contention is untenable. The written offer to allow a judgment to go on the merits was equivalent to an offer to withdraw the plea in .abatement and to allow the attachment to be sustained. As to the second proposition, my associates are also of the opinion that the plaintiff is wrong. In their opinion the costs incurred by defendant after the offer, were properly taxed against the plaintiff under the express provision of the statute above quoted, and that as the costs incurred by plaintiff thereafter, were useless or .unnecessary, they were properly taxed 'against him under the general statute regulating costs. I can not agree to this. The plaintiff recovered less than the amount offered, and under the plain reading of 'the statute he was liable for the costs only made by the defendant after the offer of compromise. When the section is compared with [173] others of like character, the limitation contended for by the appellant is apparent. . In cases of tender before suit and which is continued during the litigation, the plaintiff if he recovera no more or less than the amount tendered, shall be taxed with all costs as if the'judgment had gone against him on the merits. Section 2937, R. S. 1889. If the tender and deposit are made after the suit and the plaintiff recovers no more than the tender, he must pay all costs subsequently accruing. Sec. 2939, R. S. 1889. These statutes concerning the payment of coste are highly equitable, for in the case first provided for the plaintiff’s debt is always available to him, and he runs no risk in finally losing it. In the other case a like condition exists after the deposit, and it is but just in both cases that all costs of the litigation should be taxed 'against the plaintiff. But under section 2191, the offer of compromise, if not accepted, must be considered as having been withdrawn, and the plaintiff is to receive no benefit therefrom. He may be eventually defeated in the collection of the amount he does recover. The only penalty imposed by the statute against the plaintiff in such a ease is the payment of the costs incurred by defendant after the offer of compromise. To this extent it is perhaps a just enactment. Under the general statutes the defendant, being the losing party, must pay all the coste, but to induce litigants to compromise their differences section 2191 was enacted. This modification of the general statutes (which declares the general legislative policy of the state) should be administered according to the strict language of the section. Under my views the judgment is wrong, but under the opinion of my associates it should be affirmed. It is so ordered.