Phillips v. Shearer

• Decision Date: 11 June 1881
• Citation: 9 N.W. 218,56 Iowa 261
• Parties: PHILLIPS v. SHEARER
• Court: Iowa Supreme Court

9 N.W. 218

56 Iowa 261

PHILLIPS v. SHEARER

Supreme Court of Iowa, Des Moines

June 11, 1881

Appeal from the Delaware Circuit Court.

ON the fifth day of October, 1880, the plaintiff commenced an action before A. Tuttle, J. P., claiming of defendant $ 95.44 on account, for milk, corn, damages to stock, one-half interest in a calf, merchandise, etc., and notified defendant to appear before said justice at 10 o'clock A.M., October 12th. On the 9th day of October, the defendant served upon plaintiff a notice in writing as follows: "You are notified that on the 12th of October, A. D. 1880, at ten o'clock, in the forenoon of that day, I shall appear before A. Tuttle, J. P., within and for the county and State aforesaid, at his office in South Fork township in said county, and will then and there offer to confess judgment in your favor, on the certain claim or demand held by you against me for corn, etc., and for milk, due you up to date of October 12th, 1880, and all claims you have against me for the sum of sixty dollars and costs in said action. You can attend at said time and place and accept said confession if you desire so to do." At the time prescribed in the notice the plaintiff appeared by counsel, and refused to accept the offer to confess judgment. Thereupon the cause was tried to a jury and a verdict was returned for the defendant. The plaintiff appealed. The cause was tried to a jury in the Circuit Court, and a verdict was returned for plaintiff for $ 31.41. The defendant thereupon filed a motion to tax to the plaintiff all costs subsequent to October 12th, for the reason that the amount recovered was less than the amount for which the defendant offered to confess judgment. The court overruled the motion, and rendered judgment against the defendant for the $ 31.41 and costs. The defendant appeals. The court certifies the question upon which it is desirable to have our opinion to be as follows: "Did the court err in overruling the motion of defendant, to tax all costs subsequent to date of October 12th, 1880, to plaintiff.?"

AFFIRMED.

Welch & Welch, for the appellant.

Herrick & Doxsee and J. B. Powers, for the appellee.

OPINION

DAY, J.

The offer to confess was made under section 2899 of the Code. The offer is not confined to the claims made by the plaintiff but includes the amounts due on the claims made, up to October 12th, 1880, the date of trial, and all other claims which the...