Brown v. Cole

125 S.W. 537, 146 Mo. App. 705, 1910 Mo. App. LEXIS 515

• Court: Missouri Court of Appeals
• Decided: February 1, 1910
• Status: Published

Opinion

GOODE, J.

This is an appeal from an order of the court refusing to tax costs which accrued subsequent to October 7, 1907, in a cause pending in the circuit court. Said case was one for unliquidated damages, and, we think, was in tort for the negligence of the defendant. The petition was filed September 10, 1907, and on October seventh of said year, the defendant caused to be served on the attorney of record for plaintiff an offer to allow plaintiff to take judgment against defendant for the sum of $50.01 and the costs accrued up to that date. The offer said it was made under section 571 of the Revised Statutes of 1899, as amended by an act to be found in the Sessions Acts of 1907, page 121, and which went into force in July of said year. The effect of the amendment of the original section was to permit the offer to be served on either the plaintiff or his attorney of record, instead of on the plaintiff alone as theretofore the law required. The amendment went into effect prior to the service of this offer on the plaintiff. Acceptance of the offer was refused and on the trial plaintiff recovered judgment for one dollar and costs, or much less than the amount for which the writing allowed him to take judgment without a trial. The costs accruing after the date of the service of the offer should have been taxed against the plaintiff. [Boyd v. Carpet Co., 38 Mo. App. 210; Lieurance v. McComas, 59 Mo. App. 118; Rosenberger v. Harper, 83 Mo. App. 169; Maxwell v. Railroad, 91 Mo. App. 582.]

The order will be reversed and the cause remanded with directions to tax up said costs against plaintiff.

All concur.