City of Los Angeles v. Agardy

[1] The basic facts of this appeal are the same as those ofCity of Los Angeles v. Agardy, Civil No. 7785,[*](Cal. App.) 24 P.2d 915, which opinion is this day filed, and the reasons for the decision herein are expressed in such opinion. This appeal is on behalf of the City of Los Angeles from an order of the court taxing costs.

Respondents are entitled to a dismissal and to the ordinary costs of the trial, and the order is to that extent affirmed, but the order is reversed as to the allowance of appraisers' fees other than ordinary witness fees and reversed as to the allowance of attorneys' fees. Each side is to bear its own costs on this appeal. The cause is remanded and the superior court is directed to enter judgment in accord herewith.

Works, P.J., and Craig, J., concurred.

[*] REPORTER'S NOTE. — A hearing was granted by the Supreme Court in the case of City of Los Angeles v. Agardy, Civil No. 7785, on October 26, 1933. The opinion of the District Court of Appeal, Second Appellate District, Division Two, which was set aside by the above order, is as follows:

This is an appeal by the plaintiff from a judgment of dismissal entered in the superior court for defendants William L. and Jennie Riley. The facts are stated in the opinion.

In an eminent domain action under the Street Opening Act of 1903 (Stats. 1903, p. 376, as amended) the question of a proper award to defendants Riley for property to be taken was heard and determined by a board of referees and subsequently by the court upon exceptions. The court made its interlocutory judgment and caused the same to be entered August 17, 1925. On August 6, 1926, an injunction was issued in Blackburn v. City of Los Angeles, superior court number 199097, the full effect of which is in dispute in the instant case and will hereinafter be discussed. Thereafter the city attorney reported to the council in part: "This injunction prevents any further steps being taken to complete this proceeding. I would suggest that you consider the matter with reference to commencing new proceedings." The council thereupon instructed the city attorney to prepare *Page 71 and present to the council an ordinance abandoning the proceedings, but no further action was ever had on this resolution by the city attorney or by the city council. Thereafter, however, proceedings were had to accomplish exactly the same improvement under another ordinance. On June 14, 1930, defendants Riley filed a notice of motion to dismiss the original action on the ground that "the same has been abandoned by the plaintiff" and for judgment of dismissal with costs and attorney's fees under section 1255a of the Code of Civil Procedure. The city claimed that its acts could not be construed to amount to abandonment, but the court held otherwise and granting said motion further adjudged that the Rileys should recover their costs and expenses, including reasonable attorney's fees taxed in the sum of $4,335.00. Thereafter defendants Riley filed their cost and disbursement bill in the sum of $8,835 and a motion followed to tax costs upon the grounds, among others, that costs as contained in the bill were excessive and unlawful. The court taxed the costs at the same figure fixed in its judgment just mentioned.