Whittier Union High School District v. Beck

DORAN, J.

The plaintiff in a proceeding in eminent domain appeals from a judgment dismissing the proceeding on motion of the defendant. The motion for dismissal was made pursuant to section 1255a of the Code of Civil Procedure on the ground that the proceedings had been abandoned by the plaintiff. The motion was granted and the defendant was accordingly awarded her costs and disbursements, including attorney’s fee.

The appeal is taken upon a bill of exceptions and it appears therefrom that on July 13, 1938, plaintiff’s complaint in eminent domain was filed herein and answered by respondent, one of the defendants, and that thereafter, on February 21, 1939, plaintiff filed with the clerk of the court a request for dismissal with prejudice, pursuant to section 581, subdivision 1, of the Code of Civil Procedure; and the dismissal was accordingly entered by the clerk. No appeal has been taken from the said order of dismissal, nor has any motion to set the same aside been made under the provisions of section 473 of the Code of Civil Procedure, and the said order of dismissal has never been set aside or vacated. Subsequently, on March 10, 1939, respondent made her motion for dismissal as above noted.

In opposition to respondent’s motion for dismissal appellant plaintiff filed two affidavits, which are set forth at length in the bill of exceptions, and from which it appears that appellant’s reason for requesting a dismissal of the proceeding under section 581, as above noted, was because appellant had acquired by purchase the real property which was the subject of the proceeding in eminent domain.

Appellant specifies as error the judgment of dismissal and the awarding of attorney’s fees to respondent. Respondent contends that an eminent domain action cannot

[738]

be dismissed by an

ex parte

filing of a request for dismissal with prejudice under section 581, Code of Civil Procedure, subdivision 1, and that the filing of such a dismissal operated as an abandonment and properly supported a subsequent motion for dismissal by defendant under section 1255a, Code of Civil Procedure; and cites

Silver Lake Power & Irrigation Co.