83 Mo. App. 169 | Mo. Ct. App. | 1900
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
The latter clause of section 2191, supra reads: “If the notice of acceptance be not given, the offer shall be deemed withdrawn, and shall not be given in evidence, or commented on before a jury; and if the plaintiff fail to obtain a more favorable judgment, he shall pay the defendant’s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
Under my views the judgment is wrong, but under the opinion of my associates it should be affirmed. It is so ordered.