Spinks v. Superior Court of Los Angeles

JAMES, J.

Petition for mandate to compel the superior court to proceed with a hearing on contempt. The petition shows that an action was commenced in November, 1913, by a corporation, against the plaintiff, wherein damages were claimed in the sum of one million six hundred thousand dollars; that thereafter a second amended complaint was filed and petitioner made Ms verified answer thereto-, and September 22, 1914, was set as the day for the trial of the issues thus made up; that on the day immediately preceding the day set for trial the- plaintiff in that action filed with the clerk a direction that the suit be dismissed, and- the clerk made an entry in the register of actions, noting that the action was dismissed and the order filed; that within five days thereafter petitioner, as the defendant in that action, filed his memorandum of costs, which amounted to sixty-nine dollars, and the court thereafter gave judgment in his favor for the amount of said costs. Execution for the collection of the amount of this judgment having been returned unsatisfied, the petitioner had proceedings instituted to have the matter of the ability of the corporation to pay investigated and for that purpose obtained an order for the examination of the president and secretary thereof; that these persons appeared before the court and gave testimony and- thereupon the court made an order requiring said persons, as president and secretary of the judgment debtor corporation, to permit petitioner or his attorney or agent to examine- the corporate boobs and records; that the president and secretary refused to comply with this order and thereupon a citation was secured requiring them to appear in court and show cause why they should not be held answerable as for a contempt; that upon the latter hearing being had, objection was made on the part of the corporation debtor that the judgment of the court was void upon its face in that there was no authority in the court .after dismissal made by the clerk to enter any judgment for costs; that this contention was sustained and the contempt proceedings dismissed. By the writ here sought petitioner asks that the superior court be required to pro

[795]

ceed and consider the charge of contempt against" the president and secretary of the corporation mentioned.

A demurrer was interposed to the petition and the matter has been submitted upon the issue of law thus raised. The sole question involved is as to whether, where plaintiff in an action exercises his right to dismiss, in those cases where the code provides that he may do so by filing a request with the clerk, the opposite party is entitled to recover the costs that he may have incurred. Section 581 of the Code of Civil Procedure, provides that an action may be dismissed: “1. By the plaintiff himself, by written request to the clerk, filed with the papera in the case, at any time before the trial, upon payment of his costs; provided, a counterclaim has not been set up, or affirmative relief sought by the cross-complaint or answer of the defendant. ...” Section 1024 of the same code gives to a defendant the right to collect coste incurred by him, as of course, “upon a judgment in his favor,” in certain classes of actions of which that here involved was one. It has been held that the costs referred to in section 581 as being required to be paid by the plaintiff when he files his dismissal with the clerk, are only the costs of entering the order of dismissal.