Silver Lake Power & Irrigation Co. v. City of Los Angeles

[124]

JAMES, J.

This was an action in eminent domain. The case was originally brought in the county of Mono; thereafter, because of the disqualification of the judge of the superior court of that county, it was transferred to the county of Alpine for trial; thereafter, on a showing made that the convenience of the witnesses would be better subserved thereby, another order of transfer was made, and the suit was finally located in the superior court of the county of Orange. The defendants had answered in the action, but before trial the attorney for the plaintiff, claiming the right so to do under the provisions of subdivision 1 of section 581 of the Code of Civil Procedure, made his written request to the clerk for a dismissal of the action, which was filed on June 28, 1915. On the same day the clerk made this entry in his docket: "This case is hereby dismissed.” On the thirtieth' day of June a written notice was given to the defendants of the action so taken, and on July 1st of the same year defendants served upon appellant their notice of motion for judgment of dismissal and for costs and attorney’s fees, which they claimed under the provisions of section 1255a of the Code of Civil Procedure. This motion came on for hearing on the twenty-third day of July, 1915, whereupon the court made its order agreeable to such motion, directing that the action be dismissed and that defendants recover their costs, including a reasonable attorney’s fee. On the day of the making of that order the defendants served and filed in the office of the clerk of the superior court of Orange County their memorandum of costs and disbursements, which included a charge of five hundred dollars as attorney’s fee. Thereafter the plaintiff made a motion to retax costs, moving to strike out all of the items included in the cost bill, which motion, after hearing, was denied, and this appeal was then taken from the judgment.

Subdivision 1 of section 581 of the Code of Civil Procedure, by the authority of which the plaintiff assumed the right to dismiss its action by filing written request therefor with the clerk, is a general section providing the rule of procedure in actions not subject to some special requirement' made by law.Section 1255a relates to condemnation proceedings only and furnishes a special rule. That section reads as follows: “Plaintiff may abandon the proceedings at any time after filing the complaint and before the expiration of thirty days after final judgment, by serving on defendant and filing in