City of Long Beach v. O'Donnell

SHAW, J.,

pro

tem.

This was a proceeding in eminent domain brought to condemn several parcels of real property for public park purposes. The appellants were named in the complaint as defendants and filed an answer, appearing by attorneys whom they had engaged for that purpose. Thereafter, the plaintiff filed notice of abandonment of the proceedings; whereupon appellants sought and obtained, under section 1255a of the Code of Civil Procedure, a judgment of dismissal. Appellants then filed a cost bill in which they included a sum claimed by them as attorney fees. Plaintiff made a motion to tax costs and upon the hearing of this

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motion the court made an order striking out entirely the item of attorney fees. From this order the appeal is taken.

The order is defended by plaintiff upon the ground that appellants had employed their attorneys on a contingent fee basis, whereby the attorneys were to receive nothing unless the plaintiff took the property, and that hence appellants had not incurred any liability for attorney fees, and section 1255a of the Code of Civil Procedure did not authorize the award of such fees to them on the abandonment of the proceedings. That section reads in part as follows: “Upon such abandonment, express or implied, on motion of defendant, a judgment shall be entered dismissing the proceeding and awarding the defendant his costs and disbursements, which shall include all necessary expenses incurred in preparing for trial and reasonable attorney fees. These costs and disbursements, including expenses and attorney fees, may be claimed in and by a cost-bill, to be prepared, served, filed and taxed as in civil actions; . . . ” We have no doubt at all that the object of this provision as to attorney fees is merely to reimburse a defendant for attorney fees which he has paid, or to indemnify him for such fees for which he has become liable, provided the fees so paid or incurred are reasonable. A statute similar to this provision of the code exists in Illinois, and the supreme court of that state in

Chicago etc. Co.

v.

Flaherty,