
    Powell v. Western Stage Company.
    Where judgment was rendered against a defendant, by a justice of the peace, from, which he appealed, and in the District Court, at the time the jury was being called, the defendant offered to pay the plaintiff ten dollars, which was refused; and where the plaintiff obtained a judgment for ten dollars, the amount proffered by the defendant, which was a less sum than that recovered’before the justice, and the court thereupon ordered the plaintiff to pay the costs of the defendant; Held, That by section 2346 of the Code, the defendant was required to proffer to pay a certain amount, with costs; and that not having done so, and the sum proffered being the amount the plaintiff finally recovered, the plaintiff was entitled to a judgment for the verdict, with costs-
    
      Appeal from the PolJc District Court.
    
    Plaintiff obtained a judgment before a justice of tbe peace, from wbicb defendants appealed to tbe District Court. Before tbat court, tbe defendants offered to pay plaintiff ten dollars, at tbe time tbe jury was being called, but no testimony was offered on tbe trial to establish said proffer. Tbe plaintiff obtained a judgment for ten dollars, wbicb was a less sum tban tbat recovered before tbe justice. Tbe court thereupon ordered plaintiff to pay,tbe costs of defendants, Because be bad recovered a less sum tban tbat recovered before tbe justice, and because be bad refused to take tbe ten dollars offered, to wbicb plaintiff excepted. He now appeals, and assigns this ruling for error.
    
      T. Brown, for tbe appellant.
    
      ■J. B. Jewett, for tbe appellees.
   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.  