20 Wis. 487 | Wis. | 1866
Lead Opinion
We think that chap. 97, Laws of 1858, does not apply to actions for trespass to real, estate. It provides that the defendant may, at any time before trial or verdict, serve upon the plaintiff an offer in writing to allow judgment to be taken against him for the sum, or property, or to the effect, therein specified, with costs. If the plaintiff refuse to accept the offer, and fail to obtain a more favorable judgment, he cannot recover costs, but must pay defendant’s costs from the time of the offer. This law was undoubtedly intended as an amendment of the provisions of the code corresponding to sections 16 and 17, chap. 140, R. S. And upon referring to those provisions it will be seen that they relate expressly to actions arising upon contract.
By the Court. — The order of the circuit court is affirmed.
Rehearing
On the motion for a rehearing it is contended that the construction placed upon chap. 97, Laws of 1858, is erroneous. It is said the provisions of our statute since the passage of chap. 97, Laws of 1858, are the same as chap. 4, title 12 of the 1ST. Y. Code upon the subject of compromise; andas the courts in New York have uniformly held that an offer may be made in any and every action, it must be presumed the legislature had this construction in view when enacting this chapter. It will be found, however, that section 385 of the New York code — corresponding to chap. 97, Laws of 1858 — is an independent section, preceding sections 386 and 387 of that code— which latter sections correspond with sections 16 and 17, chap. 140, R. S. Under these circumstances the courts of New York might, perhaps, properly hold that the provision authorized an offer to compromise in every action. But from the title to chap. 97 it will be seen that this act professes to be an amendment to certain sections of our code relating to offers of the defendant to compromise the whole or part of an action. These sections are those corresponding to sections 16 and 17, chap. 140, R. S., relating to actions arising upon contract. The amendment, therefore, is restrained by the subject matter of those sections to which it is amendatory, and cannot be construed as though it were an independent provision. For it is dependent upon the provisions to which it is an amendment, and this circumstance would seem to render the decisions in New York inapplicable.
By the Court. — -The motion is denied.