Book v. Chicago, Burlington & Quincy Railway Co.

Missouri Court of Appeals

Book v. Chicago, Burlington & Quincy Railway Co.

72 Mo. App. 76, 1897 Mo. App. LEXIS 132

DecidedNovember 1, 1897

StatusPublished

This text of 72 Mo. App. 76 (Book v. Chicago, Burlington & Quincy Railway Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Book v. Chicago, Burlington & Quincy Railway Co., 72 Mo. App. 76, 1897 Mo. App. LEXIS 132 (Mo. Ct. App. 1897).

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Opinion

Ellison, J.

This appeal is from an order and judgment of the circuit court refusing to tax the costs in the .cause against the plaintiff. It appears that plaintiff sued defendant for damages in the sum of $1,900 on account of being ejected from one of defendant’s trains. The defendant made a -written offer to plaintiff under section 2191, Revised Statutes 1889, to permit judgment to go against it for $150. The judgment which plaintiff afterward obtained was for less than that sum. Whereupon defendant filed the motion now before us asking that the costs accruing after making the offer be taxed against plaintiff. It appears that upon the finding and judgment for plaintiff as aforesaid he took his appeal from said judgment, and the same is now pending undetermined in this court.

We therefore hold defendant’s motion to have been prematurely made. The statute provides that if after making the offer of judgment “the plaintiff fails to obtain a more favorable judgment, he shall pay the defendant’s costs from the time of the offer.” Since plaintiff has appealed from the judgment which was less favorable than that offered him by defendant and that appeal is pending, it can not be known but that [78]*78he will yet recover a judgment more favorable than the offer. The test is not yet complete in that respect. The statute means that the judgment which the party receiving the offer obtains must be the judgment which finally determines the amount of plaintiff’s recovery.

It is contended by plaintiff that the notice of offer of judgment was not such as is required by statute., The foregoing view makes it unnecessary to pass on the point. Affirmed.

All concur.

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Ellison, J.

This appeal is from an order and judgment of the circuit court refusing to tax the costs in the .cause against the plaintiff. It appears that plaintiff sued defendant for damages in the sum of $1,900 on account of being ejected from one of defendant’s trains. The defendant made a -written offer to plaintiff under section 2191, Revised Statutes 1889, to permit judgment to go against it for $150. The judgment which plaintiff afterward obtained was for less than that sum. Whereupon defendant filed the motion now before us asking that the costs accruing after making the offer be taxed against plaintiff. It appears that upon the finding and judgment for plaintiff as aforesaid he took his appeal from said judgment, and the same is now pending undetermined in this court.

We therefore hold defendant’s motion to have been prematurely made. The statute provides that if after making the offer of judgment “the plaintiff fails to obtain a more favorable judgment, he shall pay the defendant’s costs from the time of the offer.” Since plaintiff has appealed from the judgment which was less favorable than that offered him by defendant and that appeal is pending, it can not be known but that [78]*78he will yet recover a judgment more favorable than the offer. The test is not yet complete in that respect. The statute means that the judgment which the party receiving the offer obtains must be the judgment which finally determines the amount of plaintiff’s recovery.

It is contended by plaintiff that the notice of offer of judgment was not such as is required by statute., The foregoing view makes it unnecessary to pass on the point. Affirmed.

All concur.

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Bluebook (online)

72 Mo. App. 76, 1897 Mo. App. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/book-v-chicago-burlington-quincy-railway-co-moctapp-1897.