Birdsall v. Keyes

The plaintiff recovered judgment in justice’s court for §77 and costs, from which the defendant appealed to the county court, and demanded a new trial. Before the justice filed his return the appellant served on the respondent and his attorney an offer to allow judgment to be rendered in the appellate court for §30. This offer was not accepted, and no offer wasi made by the respondent. On the trial in the county court, the* respondent recovered a verdict for $55, on which judgment was entered with $57.31 costs, amounting in all to the sum of $112.31. On a motion for readjustment of costs, the appellant objected to the allowance of costs to the respondent, but the same were readjusted by the clerk at $52.31. The appellant then moved in county court to strike out the costs allowed by the clerk and inserted in the judgment, which motion was denied, and from the order denying that motion the appellant appeals.

The determination of the question on this appeal must depend upon the construction to be given to the various provisions of the Code of Civil Procedure relating to the subject, as we have not been referred by the learned counsel in their briefs to any case precisely like the one at bar.

The sections of the Code which relate directly to the questions of costs on appeals in the county court where a re-trial is asked for in that court are 3070, 3071 and 3072.

Section 3070 provides that within fifteen days after service of notice of appeal either party may make an offer in writing to allow judgment to be taken in the appellate court for a specified sum, and if the same be not accepted, the party on whom it is served will be liable for costs to his adversary unless the recovery is more favorable to him than the offer.

The only real effect of that offer is to entitle the party making it to costs if the recovery is less favorable to his adversary than the offer.

If this were not so, then an offer, however insufficient or inadequate, if not accepted, would deprive the successful party of costs. No such result can fairly be deduced from this section.

An insufficient offer, not accepted, when the recovery exceeds the offer, leaves the case as if no offer had been made, and the successful party in that case is entitled to his costs.

But if there be doubt as to the true interpretation of § 3070, standing alone, when read and construed in connection with § 3071, the legislative intent on this subject seems quite apparent. The latter section provides that after the expiration of ten days from the time of filing the justice’s return the action is deemed an action at issue in the appellate court; and all proceedings therein, including the entry of judgment, are the same as if the action had been commenced in the appellate court, except as otherwise specially provided.

When an appeal has reached the stage that it has become an issue in the appellate court to be triéd and disposed of as an action originally commenced in that court, the rights of the parties upon the question of costs are governed by the provisions ■of law applicable to such original actions. •

In this case, the recovery in the county court was for a sum sufficient to entitle the plaintiff to costs if his action had been originally commenced in the county court, and he is,, therefore, ■entitled, under the provisions of § 3071, to the full bill' of costs in such an action.

We think the order of the county court appealed from was correct, and should be affirmed.

Order affirmed, with ten dollars costs and printing disbursements.

Putnam, J., concurs; Herrick, J., concurs in result.