#### Petsinger v. Beaver.

Cost : After offer to confess judgment.

Wlien on appeal to the Circuit Court the plaintiff recovers less than the defendant offered to confess judgment for in the justice’s court, all costs subsequent to the offer must be taxed to the plaintiff.

APPEAL from Izard Circuit Court.

Hon. R. H. Powell, Circuit Judge.

J. L. Abernathy for appellant.

All the costs after the refusal of the offer to confess should have been adjudged against the plaintiff', as he re*563covered less than the offer. Gantt’s Digest, secs. 932-3, 475-8; 23 Ark., 59; 28 Ark., 466; 36 lb., 82.

Smith, J.

Beavers sued Petsinger before a justice of the peace on an account for $293.57. When the case was called for trial, the defendant filed a written offer to confess judgment in the sum of $120.50 ; but the plaintiff declined to accept this offer. Such further proceedings were had that the plaintiff" recovered judgment before the justice for the full amount of his demand and costs. But on appeal to the Circuit Court and trial de novo, the verdict was for the defendant. This verdict was set aside, the court being of opinion that the plaintiff was entitled to recover on one item of his account amounting to $30.38. Thereupon the defendant confessed judgment for the last named sum, but moved the court to tax the costs to the plaintiff, because,

First — The amount finally recovered was less than he had offered to confess before the justice; and,

Second — It was less than the amount for which the justice gave judgment.

But the court awarded all costs of both courts against the defendant.

This would have been correct, had there been no offer to confess judgment. Gantt’s Dig., sec. 932; Latta v. Dodd, 23 Ark., 59; Jones v. Spencer, 36 Ib., 82.

But by section 4758 it is provided 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, or part of the cause involved in the action. Whereupon, if the plaintiff" refuse to accept such confession of judgment in full of his demands against the defendant, and on the trial does not recover more than was *564so offered to be confessed, such plaintiff shall pay all of the costs of the defendant incurred after the offer.”

Reversed and remanded with directions to adjudge all costs incurred after the refusal of the offer against the plaintiff. -