People v. Thompson

THE COURT. This cause is before us upon an appeal from an order of the trial court taxing costs after dismissal of an eminent domain action between the same parties, for failure of the plaintiff to comply with the provisions of section 1251 of the Code of Civil Procedure.

Section 1255a of the Code of Civil Procedure, as amended May 8, 1933 (Stats. 1933, p. 790), reads as follows:

“Abandonment of condemnation proceedings. 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 defendants and filing in court a written notice of such abandonment; and failure to comply with section 1251 of this Code shall constitute an implied abandonment of the proceeding. Upon such abandonment, express or implied, on motion of any party, a judgment shall be entered dismissing the proceeding and awarding the defendants their 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; provided, however, that upon judgment of dismissal on motion of plaintiff, defend[670]ants, and each of them, may file a cost bill within thirty (30) days after notice of entry of such judgment; that said costs and disbursements shall not include expenses incurred in preparing for trial where the said action is dismissed forty days prior to the time set for the trial of the said action. ’ ’

Objection is made that the court allowed expert witness fees. This objection, however, appears to have been made by inadvertence, as an examination of the order of the trial court shows that only ordinary fees were allowed. The same inadvertence appears in the objection to certain items apparently covering expenditures made after the trial of the case. A reading of the testimony, however, shows that the date of July 27, 1933, is a clerical error, and should read as of June 27, 1933. The record also shows that the item charged in favor of the witness Hargrave was disallowed.

The main contention of the appellant is as to the allowance of attorney fees. We have gone over the record and found that nine days were consumed in the trial of the main action; that the value of several tracts of land was involved; that the attorneys for the respective parties were in court a number of times after the trial of the main action, in the argument of motions relative to dismissing the proceedings, and also motions to retax costs. It satisfactorily appears from the record that at least an additional day was consumed in these proceedings. Thus, the record shows that at least ten days were required for the hearing of the cause and the motions in connection therewith.