
    John Courtright v. Mark Staggers.
    1. Where the defendant has offered, under the statute, to confess a judgment for a specific amount, in an action before a justice of the peace, which offer is rejected by the plaintiff, and, on appeal to the court of common pleas, the plaintiff recovers less than was offered, judgment should be rendered against him for defendants cost, accruing after such offer.
    2. In such case, the plaintiff is not entitled to judgment for the amount so offered by the defendant; nor, is the amount of recovery to be affected by such offer.
    3. To justify the reversal of a judgment, where the error complained of is the rejection of evidence, its materiality must affirmatively appear upon the face of the record.
    In error to the district court of Delaware county.
    The original action was brought by the plaintiff, before a justice of the peace, to recover damages of the defendant, for a trespass upon .the plaintiff’s land, and injury to his cattle. After service of summons, on the appearance day, the defendant came before the justice, and offered to confess judgment for five dollars,, and costs of suit. The plaintiff rejected this offer, and proceeded to trial. Judgment was rendered against the defendant, from which he appealed..
    In the court of common pleas, it was alleged in the petition? that the defendant had entered upon the plaintiff’s land, and, with dogs, had worried and injured his cattle.
    The defendant answered, denying the averments in the petition.
    It is shown by the bill of exceptions, that, on the trial to the jury, the plaintiff gave. “ evidence to show the average value of each of the cattle mentioned in the petition, claimed by the plaintiff to be injured by the defendant, as therein stated,” before the injury; and then asked the witness, “ how much the value of the cattle was diminished by the injury ?”• The defendant objected to the question, on the ground that it was for the jury, and not the witness, to estimate the damages. The court sustained the objection. The plaintiff then offered to introduce evidence to show the difference in the value of the cattle, before and after the injury claimed in the petition, which was rejected by the court, on -the ground that such evidence would establish the damages by the estimation of witnesses, instead of the jury.
    The jury returned a verdict for the plaintiff, for one cent damages. He moved for a new trial, which was overruled. He then moved for a judgment in his favor for five dollars, the sum offered before the justice, which motion the court overruled, and rendered judgment, in favor of the plaintiff, for the amount of the verdict and costs incurred to the time the defendant offered to confess judgment before the justice, and in favor of the defendant for the subsequent costs. To all which rulings and holdings of the court, the plaintiff excepted.
    The plaintiff filed his petition in the district court, to reverse the judgment of the common pleas, and assigned for error the rulings aforesaid. The district court affirmed the common pleas; and this petition in error, is brought by the plaintiff to reverse the judgments of said courts.
    
      J, D. Van Deman, for plaintiff in error.
    
      Reid S¡ Eaton, for defendant in error.
   Day, J.

The several errors assigned ffpon this record, are reducible to two propositions:

1. Did the court of common pleas err, in refusing to render judgment in favor of the plaintiff for five dollars, being the sum for which the defendant offered to confess judgment before the justice of the peace?

2. Was there error in rejecting the evidence offered on the trial by the plaintiff, as shown by the bill of exceptions ?

The first question is settled by the express provisions of the code. S. & C. Stat. 1095, sec. 498. It provides that, “after an action for the recovery of money is brought, the defendant may offer in court to confess judgment for part of the amount claimed;” that if the plaintiff “refuse to accept such confession of judgment in full of his demands against the defendant in the action, .... and on the trial, do not recover more than was so offered to be confessed, such plaintiff shall pay all the costs of the defendant, incurred after the offer. The offer shall not be deemed to be an admission of the cause of action, or amount to which the plaintiff is entitled, nor be given in evidence upon the trial?”

The action, it is true, was brought before a justice of «the* peace, and the offer to confess judgment was made in that' court; but the provisions of the code are, so far as appliear ble, extended to proceedings in that court. S. & 0. Stat. 804, see. 202. The statute also further provides that, on appeal, “The plaintiff in the court below, shall be plaintiff in the court of common pleas; and the parties shall proceed, in all-respects, in the same manner, as though the action had beem originally instituted in the said court.” S. & C. Stat. 789;. sec. 115.

The offer was properly made before the justice, and the defendant had the rights, conferred by the statute, until the case was finally determined by the court of commen pleas; nor could the plaintiff recover a greater amount of the defendant by reason of such offer.

Upon the question, as to whether the court erred, in rejecting the evidence offered on the trial by the plaintiff, in relation to the damage alleged to have been done, it is to be observed, that the record shows that the parties were at issue on the facts, alleged as a cause of action, or ground of damage ; and it is not shown, in the bill of exceptions, that any proof, whatever, was given on the trial, to sustain the issue. Without such proof being offered, the evidence relating only to the amount of damage, was entirely immaterial; and, however the court might have ruled on the abstract proposition submitted, the party offering it could not be injured thereby. At most, it can only be inferred from the record, that proof, to sustain the issue, was given. It is not affirmed therein. But, on petitions in error, presumptions are made only in favor of the correctness of the proceedings under review, and ¡not against them. Johnson v. Mullen, 12 Ohio Rep. 10; L. M. R. R. Co. v. Collett, 6 Ohio St. Rep. 182.

The record does not disclose any thing, but that the evidence was properly rejected, even though it be conceded, that fhe ground upon which it was done, or the reasons assigned ¡for so doing, are erroneous; for, if no proof was given tending to sustain the issue, or to prove the injury complained of, ■ evidence relating only to the amount of damage sustained by the injury, was immaterial, and properly excluded, although another reason may have been assigned. It is not shown by :the record, that such proof was introduced. It is well settled, that, before this court will reverse a judgment, the error complained of must be material, and appear to be to the prejudice of the party seeking to take advantage of it; and must, moreover, be affirmatively shown by the record. Seovern v. the State, 6 Ohio St. Rep. 288; Loudnebeck v. Collins, 4 Ohio St. Rep. 251. The record, upon this branch of the case, fails to show this. It follows that, however we might determine the question decided by the court below, the judgment must be affirmed. It is, therefore, unnecessary for us to express any opinion upon the holding of that court on that proposition.

The judgment is affirmed.

Brinkerhoee, C.J., and Scott, White and Welch, JJ., concurred.  