Powell v. Western Stage Co.

2 Iowa 50

• Court: Supreme Court of Iowa
• Decided: December 15, 1855
• Status: Published

Opinion

Wright, C. J.

This case involves tbe construction of •sections 2345 and 2346 of tbe Code, wbicb provide tbat the appellant must pay tbe costs of tbe appeal, unless be obtains a more favorable judgment tban tbat from wbicb be appealed; and tbat .if tbe judgment below is against tbe appellant, be may proffer to pay a certain amount, with costs, and if tbe final amount recovered, be less favorable to tbe appellee tban such proffer, be shall pay tbe costs Of appeal.

Construing these two sections in connection, there can be -but little doubt, that tbe plaintiff was entitled to bis judgment for full costs. Tbe first section refers to those cases, where tbe appellant appeals from a judgment in bis favor before tbe justice, and not when there is a judgment against Mm. If tbe judgment is against Mm, be can provide against •subsequent costs, by making tbe proffer provided for in tbe second section. In this case, tbe defendants did not recover a judgment before tbe justice, and they are not therefore aided by tbe first section. But they appeal, and under tbe second ■section make what is called a proffer to pay. This, however, was not sufficient to entitle them to costs, for tbe reason tbat by this section they are required to proffer to pay a certain -amount, with costs. This they did not do, but proffered only the sum for which the plaintiff finally recovered. The plaintiff was entitled to his judgment for the amount of the verdict, as also his costs.

Judgment reversed.