Rich v. Stephenson

Decision Date14 May 1934
Docket Number6096
Citation32 P.2d 848,54 Idaho 423
PartiesFRED RICH, Respondent, v. THOMAS STEPHENSON, Appellant
CourtIdaho Supreme Court

JUSTICE'S COURT-PLEADING, SUFFICIENCY OF-COSTS-OFFER OF JUDGMENT.

1. In action in justice's court, offer of judgment, so as to relieve defendant of payment of costs if offer is refused may be properly contained in the answer (I. C. A., secs 10-1007, 12-301).

2. In action in justice's court, pleadings may be very informal and must be liberally construed (I. C. A., secs. 5-801, 10-401).

3. In action in justice's court, answer admitting certain sum to be due, denying indebtedness in excess thereof, and tendering amount admitted into court in full settlement, held sufficient as offer of judgment to relieve defendant of costs upon plaintiff's refusal of offer though defendant prayed that complaint be dismissed and that plaintiff take nothing and defendant recover costs (I. C. A secs. 10-1007, 12-301).

4. In action in justice's court, where defendant offered judgment in certain sum and it did not appear whether offer, or verdict in same amount, was exclusive or inclusive of interest, offer held sufficient, as against contention that defendant did not offer any interest on the account involved (I. C. A., sec. 10-1007).

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. C. J. Taylor, Judge.

Appeal from order awarding costs to respondent. Reversed and remanded, with instructions.

Order of the district court taxing costs against appellant reversed. Costs on appeal awarded to appellant.

B. W. Davis, for Appellant.

The defendant's answer was a sufficient offer of judgment under section 10-1007, I. C. A., 1932, especially under the justice court practice. (Secs. 5-801, 10-401, I. C. A.; Idaho State Merchants' Protective Assn. v. Roche, 53 Idaho 115, 22 P.2d 136; First Bank of Homedale v. McNally, 42 Idaho 443, 246 P. 5.)

Carl C. Christensen, for Respondent.

The defendant's answer was merely an admission of indebtedness and did not comply with section 10-1007, I. C. A., because it did not offer judgment to the plaintiff for anything. (Randall v. United States Fidelity & Guaranty Co., 53 Idaho 310, 23 P.2d 319; Minchan et al. v. Silveria et al., 131 Cal.App. 317, 21 P.2d 617; Shepard v. Dudley, 132 Ark. 603, 201 S.W. 1112.)

Where the answer contains an admission of indebtedness it will not be construed as an offer of judgment where the defendant prays that plaintiff take nothing by his complaint, and that the defendant recover his costs. (Shepard v. Dudley, supra.)

BUDGE, C. J. Morgan, Holden and Wernette, JJ., concur. Givens, J., dissents.

OPINION

BUDGE, C. J.

Respondent Rich instituted suit in the justice's court of Pocatello precinct to recover $ 184.15 for labor and materials furnished. Appellant answered in part as follows:

"This answering defendant admits that he is owing to the plaintiff the sum of $ 52.80 for certain work done and materials furnished to this defendant between the 28th day of May, 1930, and the 9th day of June, 1930, and this defendant herewith tenders said amount into court in full settlement of all claims of plaintiff against this defendant, and this defendant specifically denies that he is owing to or indebted to plaintiff in any greater sum than $ 52.80. . . .

WHEREFORE this defendant prays that plaintiff's complaint be dismissed and that plaintiff take nothing thereby and that defendant recover his costs herein expended."

Respondent secured a judgment in the justice's court for $ 184.15. An appeal was then taken to the district court, whereupon respondent dismissed his complaint as to one George Stephenson, and a verdict and judgment was rendered in favor of respondent and against appellant for $ 170.40. A new trial was then asked and granted and upon a retrial verdict and judgment was rendered in favor of respondent and against appellant for $ 52.80, the exact amount admitted to be owing by appellant's answer.

This appeal is from the order of the district court taxing costs against appellant in the amount of $ 112.70.

Appellant's three assignments of error are to the effect that the court erred in allowing costs to respondent, in denying appellant costs, and in holding that respondent was entitled to costs, it being urged that the answer constituted a sufficient offer of judgment to relieve appellant of the payment of costs under the provisions of I. C. A., sec. 10-1007, which provides as follows:

"If the defendant, at any time before the trial, offer in writing to allow judgment to be taken against him for a specified sum, the plaintiff may immediately have judgment therefor, with the costs then accrued; but if he do not accept such offer before the trial, and fail to recover in the action a sum in excess of the offer, he cannot recover costs, but costs must be adjudged against him, and if he recover, be deducted from his recovery. The offer and failure to accept cannot be given in evidence, nor affect the recovery otherwise than as to costs."

It is urged by respondent that an offer of judgment is not a pleading and must be in writing, separate from the answer, inasmuch as I. C. A., section 10-1007, provides that the offer of judgment and failure to accept cannot be given in evidence, and cites in support thereof Tullgren v. Karger, 173 Wis. 288, 181 N.W. 232, which case apparently stands alone. The foregoing I. C. A., section 10-1007, appears in Idaho Code Annotated as a part of Title 10, being the title containing provisions applying specifically to "Proceedings in Civil Actions in Justices' and Probate Courts." In Title 12, I. C. A., containing "Miscellaneous Matters in Civil Actions" appears a statutory provision in terms similar to I. C. A., section 10-1007, and with the same ultimate effect. This section, I. C. A., section 12-301, provides as follows:

"The defendant in any action may at any time before the trial or judgment serve upon the plaintiff an offer to allow judgment to be given against him for the sum or property, to the effect therein specified. If the plaintiff accept the offer and give notice thereof within five days, he may file the offer, with proof of notice of acceptance, and the clerk must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn and cannot be given in evidence upon the trial, and if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs accruing subsequently to the offer but must pay the defendant's costs from the time of the offer."

It will be noted that I. C. A., section 12-301, and section 10-1007, contain almost identical provisions and the ultimate result reached under either section is the same, the apparent difference between the two statutes being that I. C. A., section 10-1007, relating to proceedings in justices' and probate courts, does not require the same exactitude in service of the offer and acceptance and notice of acceptance thereof as is required by I. C. A., section 12-301, relating generally to civil actions. The sections of the Idaho Code Annotated above referred to were apparently adopted from the state of California (Cal. Code Civ. Proc., sections 895 and 997), which were in effect prior to adoption of the similar sections in this state, being practically identical in terms and to the identical effect as I. C. A., sections 10-1007 and 12-301. Both California statutes and both Idaho statutes contain the provisions to the effect that the offer of judgment cannot be given in evidence upon the trial. The California court considering Code Civ. Proc., section 997, in Basler v. Sacramento Gas & Elec. Co., 158 Cal. 514, 111 P. 530, Ann. Cas. 1912A 642, said:

"Defendant offered to permit plaintiff to take judgment in the sum of $ 2,000, and the offer was refused. It renewed its offer in its answer, with certain argumentative and exculpatory averments as to why it was made . . . . and more to the same effect. The court struck out this argumentative matter and left the simple offer as contemplated by section 997 of the Code of Civil Procedure. We are not disposed in the least to question the right of a defendant in an action for tort to make such an offer under the Code provision. (Douthitt v. Finch, 84 Cal. 214, 24 P. 929; Redington v. Pacific Postal Tel. Co., 107 Cal. 317, 40 P. 432, 48 Am. St. 132; Kaw Valley Fair Assn. v. Miller, 42 Kan. 20, 21 P. 794; Hammond v. Northern P. R. Co., 23 Ore. 157, 31 P. 299.)"

It appears that the last two cases cited in the foregoing quotation fully support the proposition that an offer of judgment may be made in the answer.

"The contention for the plaintiff, embraces two points; (1) That an offer of compromise cannot be made in an answer; . . . . It is doubtless the usual practice to make the offer by a separate writing, which, if the plaintiff accept, is filed with the clerk, with his acceptance indorsed thereon . . . . But while this is so, it is not perceived nor is any reason suggested, why an offer of judgment made in the answer is insufficient on that account, or inconsistent with the purpose of the statute. In Kaw Valley Fair Assn. v. Miller, 42 Kan. 20, 21 P. 794, the court, in construing a similar provision of the Kansas statute, under which the offer of judgment was made, in the answer filed by the defendants says: 'The answer of the defendant in this case is certainly an offer in...

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