MacLeod v. Tribune Publishing Co.

McMURRAY, J. pro tem.

*

On April 5, 1956, plaintiff prepared a request for dismissal without prejudice, which was filed the same day. A notation to that effect was made on the clerk’s Register of Actions. On April 30, 1956, a judgment of dismissal in favor of the defendants was filed, awarding attorney’s fees in the sum of $100 to defendants, together with costs. This judgment was entered on May 2, 1956, the same day the defendants filed a memorandum of costs.

On May 4, 1956, plaintiff noticed a motion for the date of May 14,1956, to vacate the order for attorney’s fees and to tax costs. The basis for this motion was that the cost bill was filed too late. The court denied the motion to vacate the order for attorney’s fees and costs and granted the motion to tax costs, taxing them at $316.50. This appeal is taken upon the ground that the court’s order denying the motion to vacate the order for attorney’s fees and its order taxing costs were erroneous.

The original judgment of April 30, 1956, awarding attorney’s fees in the sum of $100 was entered in conformity with the provisions of section 836, Code of Civil Procedure, which expressly authorizes such award upon a dismissal by plaintiff of a libel action, which was the form of action in the instant case.

Appellant in this appeal contends that the cost bill was filed too late and that his motion to vacate the order for court costs and attorney’s fees should have been granted. The appellant’s objection to the filing of the cost memorandum was timely made, which is necessary in order to preserve the objection on appeal

(San Francisco etc. Sch. Fist.

v.

Board of Nat. Missions,

129 Cal.App.2d 236 [276 P.2d 829]), as it ap

[667]

pears that the appellant’s notice of motion in this case was filed within two days after the filing of the memorandum of costs.

Appellant’s motion appears to have been predicated upon Code of Civil Procedure, section 1033, which provides in part: “In superior courts . . . the party in whose favor the judgment is ordered, and who claims his costs, must serve upon the adverse party, and file at any time after the verdict or decision of the court, and not later than ten (10) days after the entry of the judgment, a memorandum of the items of his costs and necessary disbursements in the action or proceeding . .