City of Bell v. American States Water & Service Co.

ROTH, J.,

pro tem.

City of Bell, as plaintiff, commenced a condemnation proceeding under the Acquisition and Improvement Act of 1925. Summons and complaint were served upon defendants and appellants August 27, 1930. The amended answer of appellants was filed January 28, 1932. The action remained dormant until July 31, 1934, on which date a dismissal of judgment was entered by the trial court pursuant to the motion therefor made by said appellants based upon the ground that respondent had failed to bring the action to trial for more than two years after the filing of the answer. The judgment entered pursuant to the motion not only dismissed the action as against appellants, but allowed to appellants attorneys’ fees “in accordance with section 1255a of the Code of Civil Procedure”. Thereafter, appellants filed their cost bill in which, among other things, was listed an item of $75 “attorneys’ fees pursuant to section 1255a of the Code of Civil Procedure, as amended 1933”.

Respondent then moved the trial court to vacate the judgment, its motion for this purpose reciting:

1 ‘ Said motion will be based upon the pleadings, records and files of the above entitled action, and upon the ground that said judgment is erroneous and void in that it awards and allows the said defendants their costs, disbursements, including attorneys fees, contrary to section 1255a of the Code of Civil Procedure of the State of California; that plaintiff has not abandoned this action within the meaning and construction of said section 1255a of said Code of Civil Procedure as defined and set forth by the laws and decisions of the Courts of the State of California, and that this Court did not and does not have the authority under said decisions and law to

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award said defendants their costs and disbursements, including attorney fees.”

A notice of motion to tax costs was also filed by respondent. Both were heard at the same time and at the conclusion of the hearing thereon the trial court made the following orders:

“Motion to set aside and vacate Judgment and dismiss action with costs and motion to tax costs come on for hearing, C. H. Casjens appearing as attorney for plaintiff and V. A. Berry for defendants appearing; motion to set aside and vacate Judgment, etc. is granted. Motion to tax costs is granted and costs taxed at $7.50.”