#### Eli H. Adams et al. *v.*Stephen Phifer et al.

Notice in writing served on tire plaintiff or his attorney hy the defendant, to-the effect that the defendant does then offer to confess judgment in the - action for a sum therein named and costs to that date, should he re-garded as an offer to allow judgment to he taken against him, within-the meaning of section 493 of the code.

Error to the District Court of Madison county.

During the pendency of the original action in the Court of Common Pleas of Madison county, which was brought by defendants in error against the plaintiffs in error, for the recovery of money only, and after the issues of fact had been made up, to wit, on the 3d of February, 1868, the defendants below, by their attorneys, served upon the attorney for plaintifis an instrument in writing, of which the following is a copy:

*302“ Stephen Phifer and Joseph Plowman against Eli H. Adams and J. C. Davidson. Madison Common Pleas, No. 1720.

“ The plaintiffs are hereby notified that the defendants -offer to confess judgment in favor of the plaintiffs for the sum of three hundred and fifty dollars, and costs of suit to -this date.

“ Goode & Bowman,

*“Defendants’ Attorneys.”*

No notice of acceptance by the plaintiffs of the offer thus •made was given to the defendants.

Afterward, at the February term of the court in 1869, the cause was tried by a jury, who returned a verdict in .favor of the plaintiffs for the sum of three hundred and twenty-four dollars and twenty-seven cents, and no more.

Judgment being rendered upon the verdict in favor of the plaintiffs, the defendants moved the court for judgment in their favor for costs made after the 8d of February, 1868; which motion of the defendants was overruled, and judgment was rendered against the defendants for all the costs made by the plaintiffs in the action. To the overruling of their said motion, and to the judgment in favor of plaintiffs for all their costs, the defendants excepted.

On petition in error the District Court affirmed the judgment of the Common Pleas.

*Goode Bowman,*for plaintiffs in error:

The offer in this case was made in conformity to the provisions of section 493 of the code. True, it used the word “ confess ” instead of the word “ allow; ” but the plaintiffs below were none the less advised that they might have judgment for the sum named, nor was it any the less binding upon the defendants on that account. There was no ■uncertainty in its meaning. *Carpenter et al.*v. *Kent et al.,*11 Ohio St. 555.

In the case of *Fike v. France,*12 Ohio St. 624, relied upon by counsel for defendants, the offer was not in compliance with the provisions of either section 493 or 498 of the code. *303It was not in *open court*(sec. 498), nor was it served ■upon the opposite party as required by section 493.

*Harrison § Marsh,*for defendants in error:

The offer to “ confess judgment” was not an offer by the defendants below to do a certain act, nor an offer by them to allow the plaintiffs below to do a specified act without the active intervention or appearance of the defendants. 'The offer to confess judgment is one thing, and an offer to allow a plaintiff to take a judgment, by way of compromise, without confession, is another and a different thing. The distinction between these things is clearly recognized by •sections 493 and 498 of the code. The offer to confess judgment must be- made in open court. Code, sec. 498; *Fike*v. *France,*12 Ohio St. 624; *Armstrong*v. *Spears,*18 Ohio St. 373.

If the defendant seeks to avail himself of the provisions of either section of the code referred to, he must do it by a strict compliance with the particular section under which he would proceed. The proceeding is the creature of the ■statute and must conform to it. If the defendant proceeds under section 493, the notice he must give of the offer to compromise must be so definite and certain that there should be no doubt or misunderstanding about it. *Post*v. *N. Y. Central R. R. Co.,*12 How. 552.

It can not be successfully claimed that the notice in the ■case at bar was so definite and certain. And this is the more, necessary in view of the fact that the code provides for an “ offer to compromise ” and an “ offer to confess judgment.” This offer not being plain, explicit, and unequivocal, and having been made in term time, it is difficult to see how it can be other than what it says it is — namely, .an offer to confess judgment.

By the Court.

The written notice of February 3, 1868, can not avail the defendants as an offer to confess judgment, ,as provided in section 498 of the code. The offer was not made *in open court. Fike*v. *France,*12 Ohio St. 624. Can. *304it be made available as an offer to allow judgment to betaken against them, as provided in section 493 ? That it should be regarded as an offer under the last-named section can scarcely be doubted, if the party to whom it was given could not have been misled by regarding it as a notice, under the first-named section, that an offer to confess would, be made in court, as provided in that section. Could the plaintiffs have been so misled ? We think not. It did not purport to be notice that an offer to confess would be made in the future. No day for making the offer in the future was named. It could not therefore have been regarded as a notice under section' 498. It was a notice under section 493, or it was of no legal import whatever.

The plaintiffs were notified of an offer *in prcesenti,*and the notice was in strict conformity with the terms of section 493, except only that the words “ to confess judgment were used instead of “ to allow judgment to be taken.” The difference between the two modes of making an offer-is technical rather than substantial. In either case, the judgment must be rendered by the court, and the words in each form clearly express the consent of the party making the offer to the rendition of the judgment. If the plaintiff had accepted the offer in the mode prescribed by the section, there can be no doubt that the court would and should have rendered judgment in the case for the amount agreed upon, without other or a formal confession of judgment. The provisions of the code and all proceedings under it are to be liberally construed with a view to promote its objects, and assist the parties in obtaining justice. Code, sec. 2.

It is claimed by defendants in error, that *Fike*v. *France,*12 Ohio St. 624, and *Armstrong*v. *Spears,*18 Ohio St. 373, are in point and decisive of this question, in favor of their view. We think these cases are clearly distinguishable from the present. In Fike’s case, the defendant merely placed a written offer to confess, etc., on file with the papers • in the case. The offer thus made was held to be ineffectual,, xmder section 498, because it was not made *in open*court.. *305Of course, it was ineffectual under section 493, because it was not served on the plaintiff or his attorney. In Armstrong’s case, the offer relied on by defendant was found in his answer and was part thereof. The offer thus made was not available under either of said sections, as an offer to compromise, or an offer to confess, for the reasons above named.

In the case before us, the offer was in writing, was written on a separate paper, and was served on plaintiffs’ attorney, as directed by section 493. And we think it should have been regarded as an offer to compromise, within the provisions of that section.

The judgment of the District Courtis therefore reversed, and also the judgment of the Common Pleas, in so far as it was rendered in favor of the plaintiffs below for costs made after the service of the notice to compromise, etc.