McClatchey v. Finley , 62 Iowa 200 ( 1883 )

Servers, J.

The action was on a promissory note, the execution of which was admitted in the answer. The defendants pleaded a partial failure of consideration, and also a counter-claim. Just prior to commencing the trial, the defendants offered to confess judgment for $125, which the plaintiff refused to accept. The j ury found for the plaintiff in the sum of $131.15, but the issues as to the failure of consideration and countex*-claim were found in favor of the defendants. Thereupon the defendants moved the court to tax certain costs to the plaintiff, which was overruled, and the following question has been certified upon which the opinion of the supreme court is desired: “ Whether in an action wherein the plaintiff sues on a promissory note, the execution of which defendants admit in their answer, and plead two separate counterclaims, to which plaintiff replied, denying the same, but on which the defendants were successful, and defendants before the trial made an offer to allow judgment to be rendered against them in favor of the plaintiff for an amount less than was found due the plaintiff by the jury, which offer plaintiff refused to accept, did the defendants by making said offer waive their right to have the costs of the trial of the issues joined on said counter-claim taxed to the plaintiff?”

If no offer to confess judgment had been made, the costs incurred on the issues found in favor of the defendants should have been taxed to the plaintiff. Code, § 2933. Hall v. Clayton, 42 Iowa, 526; Judd & Co. v. Day Brothers, 50 Id., 249. The circuit court seems to have been of this opinion, but concluded that the defendants, by making the offer to confess judgment, waived their right to costs, no matter what the jury might find as to the issues involved, if the offer to confess was insufficient in amount.

We do not think this is so. If the offer to confess judgment was sufficient in amount, then the defendants were entitled to costs, no matter whether the issues were found in their favor or not. But, as the offer was insufficient, it’has no effect on the question of costs. As, however, the issues were found in favor of defendants, they are entitled to costs, on the ground that they were successful as to the only matters litigated in the determination of which the costs were incurred.

The offer to confess judgment, as it affects costs, and the determination of the issues affecting the same thing, are two independant matters, which have no connection with each other, and the right to costs under one has no bearing on such right under the other.

As we understand the question certified, it must be answered in the negative; that is, nothing was waived by the offer to confess.

Reversed.