City of Los Angeles v. Griffith Abbott

THOMPSON (IRA F.), J.

This is an appeal from an order denying appellant’s motion to tax costs in an action of eminent domain. On May 14, 1929, the respondents gave notice that on the 20th they would move the trial court for an order dismissing the action and fixing the attorney’s fees to be allowed the respondents on the ground that the action had been abandoned by the city and another action started “covering the same matter”. The notice stated that it would be made on the records and files, including “affidavits now on file”, but what the affidavits were is not disclosed by the transcript before us. The court rendered a judgment of dismissal which was entered August 1, 1929, wherein it was recited that the plaintiff had failed to prosecute the action and had abandoned the same and wherein it was adjudged that the defendants should recover their costs, and this judgment has long since become final. The judgment appearing in the transcript shows the exact amount of costs, including attorney’s fees. On August 7th the appellant gave notice that on August 9th it would move to tax the costs claimed by the defendants on the grounds (1) that it was permanently enjoined from spending any money in the action, (2) that the judgment restraining it from proceeding with the action rendered

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by the superior court had become final, (3) that there had been no abandonment of the action by the city and consequently respondents were not entitled to costs, and (4) that the attorney’s fees claimed were excessive. The motion was supported by an affidavit of a deputy city attorney that on September 11, 1924, an action was brought by the O. T. Johnson corporation to restrain the city from proceeding with the improvement for which the condemnation of the land was sought and from condemning the property and from paying out moneys in connection with the proceedings; that on April 9, 1925, a permanent injunction was granted by the terms of which all proceedings had in connection with the improvements contemplated by ordinance No. 45501 (that being the number of the ordinance under which the condemnation action was brought) were declared null and void and the municipality and its agents were enjoined from proceeding further or spending any money in connection therewith. The motion to tax was denied.

It is now contended that inasmuch as the judgment does not specifically allow attorney’s fees that it is improper to include them in the cost bill. Cases defining and limiting the meaning of the word “costs” in its general application are neither pertinent nor helpful. Section 1255a of the Code of Civil Procedure on its face would seem to answer the argument of appellant. It reads in part as follows: “Upon such abandonment.. . . 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 attorneys’ fees. These costs and disbursements, including expenses and attorneys’ fees, may be claimed in and by a cost bill, to be prepared, served, filed and taxed as in civil actions; ...” It is patent as is said in