Madden v. Brown

97 Mass. 148 | Mass. | 1867

Bigelow, C. J.

It is true that the statute by its terms requires that an offer of judgment and consent to be defaulted should be made in court. Gen. Sts. c. 129, § 62. Such offer filed in vacation would not be a compliance with this provision. The plaintiff could not then avail himself of it to obtain a judgment, if he should elect to accept it. But when the offer is filed in vacation and continues on file till the next term, it then becomes operative, and should be entered of record as of the first day of that term. The plaintiff can then, if he sees fit, accept the offer and have judgment accordingly. If he fails to do so in conformity to the provisions of the statute, he will be liable to costs from that time, in the event that he does not recover a greater sum than that offered, exclusive of interest. Gen. Sts. c. 129, § 63. It is not alleged in the present case that the plaintiff did not receive due notice of the filing of the offer of judgment. We are therefore of opinion that the offer is to be taken as having been made “ in court” on the first day of the term next after it was filed in the clerk’s office, and that the plaintiff is entitled to his costs for travel and term fees for the previous terms and for that term, and that the defendant is entitled to costs for the subsequent terms during which the action remained in court.

Taxation ordered accordingly.