Plaintiff in ejectment, who obtains judgment for possession, is also entitled to his costs.11

§ 1539. Prevailing party

The prevailing party is entitled to all his costs, although the jury attempt to divide the same equally between the parties.+2

§ 1540.

Costs that may be taxed at discretion of court

"Unless otherwise provided by statute, the costs of motions, continuances, amendments and the like, shall be taxed and paid as the court, in its discretion, may direct." 43

1541. On motions

Where a judgment debtor's motion to expunge the record of the judgment as false was sustained, the court had no discretion to tax the cost of the motion upon him.**

It was an abuse of discretion to tax against defendants the costs of a continuance granted at plaintiff's request and for his benefit.45 Where an administrator fails in a suit brought by him at the procurement of a nominal defendant for such defendant's benefit and not for the benefit of the estate, the costs should be taxed against such defendant.46

Where, on trial of an interplea in attachment, the jury found for interpleader in effect that the property attached was covered by his mortgage, that neither plaintiffs nor the sheriff, before levying the writ, had paid or tendered to him the amount of the debt and interest thereby secured, as provided by the statute providing that, before mortgaged chattels are taken under attachment, the officer or attaching creditor must pay or tender to the mortgagee the amount of the mortgage debt and interest, or must deposit the amount thereof with the county treasurer, payable to the mortgagee's order, and that, if the attachment be defeated or fails and the deposit has. been made, the person procuring levy of the attachment shall be subrogated to all rights of the mortgagee to the property, the court

41 MaHarry v. Eatman, 116 P. 935, 29 Okl. 46.

42 Nation v. Littler, 52 P. 96, 59 Kan. 773.

48 Rev. Laws 1910, § 5228.

44 Nesbitt v. Chesebro, 133 P. 545, 89 Kan. 863, judgment modified on rehearing 136 P. 793, 91 Kan. 14.

45 Atchison, T. & S. F. R. Co. v. Huitt, 41 P. 1051, 1 Kan. App. 788. 46 Scott v. Pittman, 132 P. 491, 37 Okl. 470.

should sua sponte, dissolve the attachment, order the property returned, and tax plaintiffs with the cost of the attachment and of the interplea.47

§ 1542. Quo warranto

In quo warranto to try title to an office, the relator, having a right to bring the action, and having been the successful party in an election contest suit between the same parties, is entitled to a judgment for costs.48

1543. Defendant

"Costs shall be allowed of course to any defendant, upon a judgment in his favor, in the actions mentioned in the last section." " Where the United States is plaintiff in an action, and defendant has filed a set-off, no judgment can be rendered against the government for any costs."

50

§ 1544. Apportionment

"In other actions, the court may award and tax costs, and apportion the same between the parties on the same or adverse sides, as in its discretion it may think right and equitable." 51

In an action for an accounting, the court has discretionary power to apportion the costs as it may think right.52

Where in cross-actions each party is defeated in respect to his own cause of action, each should pay costs.53

Where separate suits are instituted against joint wrongdoers, and the judgment recovered in one is paid, plaintiff is entitled to the costs which had accrued in all of the cases up to the time when the satisfaction was made, but defendants are entitled to the costs that they may subsequently accrue in the other cases.54

Costs in an action for libel may be divided where a set-off for libel

47 Dodder v. Moberly, 114 P. 714, 28 Okl. 334.

48 Moss v. Patterson, 20 P. 457, 40 Kan. 726; Peter v. Blue, 20 P. 852, 40 Kan. 727.

49 Rev. Laws 1910, § 5230.

50 United States v. Warren, 71 P. 685, 12 Okl. 350.

51 Rev. Laws 1910, § 5231.

52 Walker v. Walker, 88 P. 1127, 17 Okl. 467.

In action for accounting between partners taxation of costs lies within discretion of court. McGillvray v. Moser, 43 Kan, 219, 23 P. 96.

53 Finneran v. Coursey, 2 P. 554, 31 Kan. 408.

54 Westbrook v. Mize, 10 P. 881, 35 Kan. 299.

is pleaded and proved, and judgment is not rendered in favor of either party.55

In the absence of statute or rule, the right to have expenses incurred taxed as costs is waived if not asserted until after judgment has been satisfied, when no excuse is shown.56

In an action to set aside a deed on the ground of fraud, where the record does not show affirmatively that there was a valid excuse for a failure to tender the consideration paid, a decree taxing the costs to plaintiff will not be disturbed."7

In a suit to enjoin a nuisance, the statute confers discretionary power on the court in the matter of taxing costs.58

§ 1546. On joint liability

"Where several actions are brought on one bill of exchange, promissory note or other obligation, or instrument in writing, against several parties who might have been joined as defendants in the same action, no costs shall be recovered by the plaintiff in more than one of such actions, if the parties proceeded against in the other actions were, at the commencement of the previous action, openly within the state." 59

§ 1547. Effect of tender or offer to confess judgment

"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, or part of the causes involved in the action; whereupon, if the plaintiff being present, refuse to accept such confession of judgment in full of his demands against the defendant in the action, or having had such notice that the offer would be made, of its amount, and of the time of making it, as the court shall deem reasonable, fail to attend, 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 the amount

55 Kozel v. Kozel, 104 Kan. 530, 180 P. 278.

56 Missouri, K. & T. Ry. Co. v. Jenkins, 101 P. 630, 79 Kan. 698.

57 Dunbar v. Severance, 31 P. 1055, 50 Kan. 395.

58 Patten v. Ramsey, 31 Okl. 166, 120 P. 643.

59 Rev. Laws 1910, § 5232.

HON.PL.& PRAC.-94

(1489)

to which the plaintiff is entitled, nor be given in evidence upon the trial."

60

Where pending suit plaintiff accepts a sum not as a settlement but only as a tender, and this is found to be the amount actually due, defendant is liable only for costs accruing prior to the tender.1 However, tender by defendant at the trial or after action is commenced, does not affect plaintiff's right to costs accrued prior thereto.62

An offer of judgment by defendant, unaccompanied by a tender does not relieve him from costs.63

60 Rev. Laws 1910, § 5306.

Defendant filed in the case with the clerk of the court an offer, in writing. to confess judgment for $213.01, and for costs of suit to date, and immedi ately thereafter presented the offer to plaintiff's attorneys, who, in writing and for plaintiff, declined the offer. On the trial plaintiff recovered a judg ment for only $180 and costs. All costs accruing after the offer was presented to plaintiff's attorneys should be assessed and taxed against plaintiff. Wichita & W. R. Co. v. Beebe, 17 P. 154, 38 Kan. 427.

Where the statute provides that defendant in an action for the recovery of money only may at any time before the trial serve on plaintiff an offer to allow judgment to be taken for the sum specified therein, held, that defendant in an action for damages arising in tort may, in his answer, offer to con fess judgment for a specified sum; and, if judgment be not recovered for a larger amount, a judgment for costs of the action which accrued after the filing of the answer should be rendered against plaintiff. But all costs made before the filing of the answer should be taxed against defendant. Kaw Valley Fair Ass'n v. Miller, 42 Kan. 20, 21 P. 794.

An action was brought before a justice on one claim for $30 and one for $195. Defendant on August 9, 1907, admitted liability for $30, paid the money into court, and pleaded payment as to the other item. Judgment for plaintiff, and, on appeal, plaintiff was defeated. The jury returned a verdict for $30 and interest, which amounted to less than five cents, and was not included in the payment. The court taxed the costs prior to the tender to defendant and the remainder to plaintiff. Held not error. Kerr v. Coberly, 105 P. 520, 81 Kan. 376.

61 Ranson v. Capron Hardware Co., 56 Okl. 278, 155 P. 1166. 62 Talla v. Anderson, 53 Okl. 418, 156 P. 670.

Where plaintiff's recovery in an action of account is no greater than the amount tendered and paid into court by defendant, a judgment against plaintiff for all costs accrued subsequent to the tender is proper. Elder v. Elder, 23 P. 600, 43 Kan. 514; First Nat. Bank of Soper v. Beecher, 62 Okl. 36, 161

P. 327.

Under the facts stated, held, that defendant was at least liable for the costs up to the time it answered in justice's court, where its offer to confess judg ment was on condition that it be absolved from all costs. Missouri, K. & T. Ry. Co. v. Housley, 46 Okl. 216, 148 P. 689.

63 King v. Harrison, 4 P. 93, 32 Kan. 215.

Defendant is not entitled to judgment for costs by reason of plaintiff's recovery of a less sum than that which defendant had tendered him, where it is not shown that the tender was ever brought to the knowledge of the court, or was kept good, or that defendant ever offered to confess judgment for that or any other sum.**

Where the amount recovered by plaintiff was considerably more than the amount for which defendant offered to confess judgment, after the action was begun, it was not error to refuse to divide the

By the provisions of the statute, where a defendant before trial files with the court and serves opposing counsel with notice of an offer to compromise and allow judgment to be entered for a less sum than that claimed by the plaintiff, and said offer is not accepted, and the plaintiff fails to obtain judgment for more than was offered by the defendant, he shall pay the defendant's costs from the time of the offer. And as a general rule the defendant will not be permitted to throw the plaintiff into the costs by proof of an offset purchased after the time of the offer to compromise, or by making payments after such offer. But where the demand sued on is the primary debt of another, and the plaintiff sues as assignee of the

64 Saum v. La Shell, 25 P. 561, 45 Kan. 205.

On appeal from an award of commissioners to condemn a right of way for a railroad, the company offered in writing "to allow judgment to be taken against it for $206.25, with accrued costs." Without withdrawing this offer, it subsequently offered to allow judgment to be taken for a larger sum, with accrued costs. Three successive verdicts for amounts larger than the first offer were set aside. The fourth verdict was for a smaller sum. Civ. Code, § 528, provides that "in an action for the recovery of money," defendant may offer to confess judgment, and, if plaintiff refuses to accept such confession in full satisfaction of his demand, and does not recover more than was offered, plaintiff shall pay all costs incurred after the offer. Held that, though the proceeding was not within the letter of the statute, it was within its spirit and intent, and the landowner must pay all costs incurred by the railroad company after the first offer to confess judgment. Chicago, I. & K. R. Co. v. Townsdin, 26 P. 427, 45 Kan. 771.

In an action for the recovery of money, where defendant desires to confess judgment for a sum less than the amount claimed, for the purpose of saving costs, if plaintiff, on the trial, fail to recover judgment for a sum larger than the amount offered, he must give plaintiff notice of his intended offer, the time when he proposes to make it, and of the amount thereof, or he must call the attention of the court to the offer when plaintiff is present in court. Van Bentham v. Commissioners of Osage County, 49 Kan. 30, 30 P. 111.

65 Matheney v. City of El Dorado, 109 P. 166, 82 Kan. 720, 28 L. R. A. (N. S.) 980.