City of Long Beach v. Anderson

THOMPSON, J. The plaintiff has appealed from an order refusing to retax costs in this condemnation suit in which the respondent was allowed “necessary expenses incurred” in preparation for the trial, including the cost of securing the services of an expert witness.

In this suit in eminent domain, judgment was rendered in favor of the plaintiff for the condemnation of real property. After the rendition of judgment the proceedings were abandoned by the plaintiff pursuant to the provisions of section 1255a of the Code of Civil Procedure. A judgment of dismissal was accordingly entered in which the defendants were allowed expenses incurred in preparation for the trial in the sum of $258.40 as evidenced by a memorandum of costs therefor which was duly filed as provided by section 1255a, supra,. This memorandum of costs contained an item of $100 for the services of an expert witness em-ploycd to appraise the property. The reasonableness of the amount of this item is not questioned-. The plaintiff subsequently moved to retax costs by eliminating this item for expert, witness fees on the ground that it was illegally allowed, since no order of court was procured under section 1871 of the Code of Civil Procedure for the appointment of the expert witness. The motion to retax costs was denied.

The appellant contends that an order of court appointing an expert witness under the provisions of section 1871 of the Code of Civil Procedure is an essential prerequisite to the allowance of such necessary expenses in preparation for the trial of a condemnation suit which had been abandoned pursuant to the provisions of section 1255a of the same code.

Section 1255a of the Code of Civil Procedure as it then existed provided in part:

“Plaintiff may abandon the proceedings [in eminent domain] at any time after filing the complaint and before the expiration of thirty days after final judgment, by serving on defendant and filing in court a written notice of such abandonment; and failure to comply with section 1251 of this [132]code shall constitute an implied abandonment of the proceedings. 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. ...”

With respect to the appointment and compensation for the services of expert witnesses, section 1871, supra, provides in part: