
    William M. Armstrong v. Spencer Spears.
    1. The “ offer to compromise,” provided for in section 493 of the code, and the “offer to confess judgment,” provided for in section 498, can not properly he made in the answer in an action, but to be effectual must be made as follows: The “ offer to compromise,” in a separate writing, to he served as prescribed in section 493; and the “ offer to confess judgment,” in open 
      
      court, in the presence of the plaintiff, or in pursuance of the notice to him prescribed in section 498.
    2. The averment in an answer that the defendant, on a day named, tendered to the plaintiff a specified sum as being the amount equitably due to him on his alleged causes of action, and that the plaintiff refused to receive the same, and that the defendant, ever since that time, has been and still is ready and willing to pay the plaintiff the sum tendered, with interest from the day it was made, and now offers to confess judgment therefor, is not good either as an “ offer to compromise,” under section 493 of the code, or as an “ offer to confess judgment,” under section 498, because not made in the manner prescribed in those sections.
    Motion for leave to file petition in error to reverse the judgment of the district court of Brown county.
    In September, 1867, Spears sued Armstrong before a justice of the peace of Brown county, and, on October 22, 1867, recovered a judgment for $265.75, and $5.90 costs of suit. Armstrong appealed to the common pleas.
    November 27,1867, Spears filed his petition in the common pleas, claiming $259.78, with interest from May 31, 1867.
    February 5, 1868, Armstrong answered, denying the causes of action stated in the petition, and further averred that, prior to the appeal of the case, to wit, on October 30, 1867, he tendered to Spears $210, as being the amount of the debt, interest, and costs, at the time equitably due to him on his alleged causes of action, and that Spears refused to receive the same; that he (Armstrong) ever 374] since that time has *been and still is ready to pay Spears the $210, and interest from said 30th October, 1867, and now offers to confess judgment therefor; and prays judgment for costs.
    July 18, 1868, “ came the parties,” and the case was tried to a jury; verdict for Spears for $210.60; judgment for that sum, and for full costs, taxed at $147.05.
    Armstrong excepted to that part of the judgment for costs that accrued after February 5,1868, the date of filing his answer, and by petition in error in the district court, sought to reverse the judgment of the common pleas. The judgment was affirmed.
    The present motion is for leave to file a petition in error in this court to reverse the judgment below.
    
      Marshall & Loudon, for the motion:
    The amount recovered by Spears was less than the sum for which Armstrong offered to confess judgment. Therefore, all the costs that accrued after the answer was filed should have been taxed to Spears, and not to Armstrong. Code, secs. 493, 498.
    The offer in the answer was a legally sufficient “ offer to confess judgment,” Code, sec. 493.
    The answer was required to be filed with and indorsed by the clerk. Code, secs. 103, 586. Spears was bound to take notice of the filing. He was entitled to take judgment on the answer for $219.63, and costs prior to its being filed,
    The filing the answer containing the offer, “ in open court,” is making the offer “ in court ” — equivalent to an oral offer, in open court, to confess judgment for the amount stated in the answer. Code, see. 498.
    The case of Fike v. France, 12 Ohio St. 624, is not against this view. In that case, the offer was not made in the answer, but a separate writing, filed with the papers in the case — a paper which the law does not require, and, perhaps, does not allow, to be filed. An answer is not only authorized, but required to be filed.
    As the record shows that both parties were present at the trial, it is clear that the offer to confess judgment was brought to the notice of Spears.
    
      *W. N. Young, and Baird & Young, contra:
    1. The offer to confess judgment, provided for in section 498 of the code, is no part of the pleadings.
    2. The answer shall contain: (1.) A general or specific denial; (2.) Any new matter constituting a defense, counter-claim, or set-off. Code, sec, 92.
    3. The tender was not good unless kept good — followed up by leaving the money in court.
    4. Not reforming the pleading, by striking out the offer to confess judgment, does not make it a defense. Code, sec. 89.
    5. The offer to confess is statutory, and not a common-law proceeding.
    6. The offer to confess judgment not being a part of the pleading, and being statutory, Armstrong did not comply with section 498 of the code; and the offer, as made, avails him nothing. Fike v. France, 12 Ohio St. 624.
   By the Court.

We are of opinion that neither the “offer to compromise,” provided form section 493 of the code, nor the “offer to confess judgment,” provided for in section 498, can properly be made in tbe answer in an action, but to be effectual must be made as follows: The offer to compromise, in a separate writing, to be served as prescribed in section 493; aud the offer to confess judgment, in open court (Fike v. France, 12 Ohio St. 624), in the presence of the plaintiff, or in pursuance of the notice to him proscribed in section 498. The effect of failing to give notice of the acceptance of the offer to compromise, in the one case, and the refusal to accept, or failure to attend, the offer to confess judgment, in the other, show these offers to be matter inconsistent with the nature of an answer (Code, secs. 92-94), and with the rules of pleading prescribed in sections 127, 128.

The averment of the tender in the answer in this case is not relied upon as a technical tender. The money tendered was not brought into court. S. & C. 1140, 1141, sec. 639. It is claimed to be an offer to confess judgment under section 493 or section 498 of the code. We do not think it was an offer made in conformity with either of these sections. It was not made in a 376] separate writing, served as provided for in section *493. It was not made in open court, in the presence of the plaintiff, or in pursuance of notice to him, as provided for in section 498. It was not properly made in the answer for the reasons stated; and tko plaintiff was not bound to take notice of that averment in the answer as being anything but an admission that the two hundred and ten dollars was the amount equitably due him at the time.

The common pleas did not err in giving judgment for full costs.

Motion overruled.  