
    James M. Castner, Appellant, v. The Chicago, Burlington & Quincy Railway Company.
    Costs: TAXATION AFTER OFFER TO CONFESS JUDGMENT. A plaintiff should not be taxed with defendant’s costs after an offer to confess judgment which is refused, unless his recovery is less than the amount of the offer.
    
      Appeal from, Monroe District Qowrt. — ■ Hon. Robert Sloan, Judge.
    Wednesday, June 5, 1907.
    Appeal from an order taxing certain costs to the plaintiff.—
    
      Reversed.
    
    
      John T. Clarhson, for appellant.
    
      T. B. Perry, for appellee.
   Sherwin, J.

This was a suit to recover damages caused by fire. Before a trial was had in the court below the defendant offered to confess judgment for the sum of $351, which the plaintiff refused to accept, and thé trial proceeded; the plaintiff obtaining a verdict and judgment therein for the sum of $463. An appeal was taken to this court, and a reversal of the ease was ordered unless the plaintiff should elect to accept $300, with interest • thereon from June 13, 1901, in full satisfaction of the judgment rendered in the district court. The plaintiff elected to accept the amount so named, and after the election was filed the defendant paid into court the sum of $366 in satisfaction of said judgment. Afterwards the appellee herein filed a motion to retax the costs and to tax to the plaintiff all costs made in the ease subsequent to the filing of the offer to confess, and this motion was sustained. Section 3818 of the Code is as follows: “After an action for the recovery of money is brought, tbe defendant may offer in court to confess judgment for part of tbe amount claimed. ... If tbe plaintiff being present refuses to accept judgment for sucb sum in full of bis demands in the action, . . . and on tbe trial does not recover more than was offered to be confessed, be shall pay tbe costs of tbe defendant incurred after tbe offer.”

The appellant contends that, having recovered judgment for $463 on the trial in the court below, be is not within the provisions of tbis statute, while the appellee contends that, the judgment having been reduced by this court, the statute applies; in other words, that the trial referred to in the statute relates to the final disposition of the case in tbis court in tbis particular instance. Tbis question we do not find it necessary to determine at tbis time; for, if the appellee’s contention be conceded, the order retaxing the costs in tbis case was erroneous. the judgment of tbis court was, in effect, that the plaintiff was entitled to $300 and interest, and sucb sum constituted the measure of bis recovery and the judgment which should be entered gainst him on procedendo in the court-below. This exceeds the amount which bad been tendered, and, if the appellee’s contention be true that the trial in tbis court fixes the status of the parties under tbis statute, it is clear that the plaintiff should not have been required to pay the costs of the defendant incurred after its offer to confess judgment. Watts v. Lambertson, 39 Iowa, 273.

Tbe judgment'of tbe district court taxing said costs to tbe appellant is therefore reversed.— Reversed.  