Sealand Investment Corp. v. Shirley

FOURT, J. This appeal is “from that part of the judgment . . . which denies costs against Katherine E. Martin Powell and Edward J. Powell, . . . and further appeal from that part of the minute order of March 30, 1960 . . . which denies costs against Katherine E. Martin Powell and Edward J. Powell.”

The facts and other matters relating to this case have been set forth in Sealand Investment Corporation v. Emprise Incorporated et al., Civil No. 24808, ante, p. 305 [12 Cal.Rptr. [324153]], filed this day, and for the most part will not be repeated herein.

In part, the judgment in this ease provides in pertinent part as follows:

“3. That said complaint was filed by Messrs. Vaughan, Brandlin & Baggot pursuant to instructions and authorization from Katherine E. Martin Powell and Edward J. Powell; and

“4. The court is without authority to award costs against Katherine E. Martin Powell and Edward J. Powell, since they are not named as parties to this action.

115. The attorneys who commenced this action at the request of Katherine E. Martin Powell and Edward J. Powell have requested that the costs in this dismissal he taxed against the corporation which was named as plaintiff herein.

“6. Defendants are entitled to have this action and the complaint herein dismissed and to recover judgment for costs against plaintiff. . . .

“It is further ordered, adjudged and decreed that the motion of defendants [i.e. appellants herein] for imposition of costs against Katherine E. Martin Powell and Edward J. Powell he and it hereby is denied.

“It is further ordered, adjudged and decreed that the defendants named below [i.e., appellants herein] and each of them do have and recover from plaintiff [i.e., Sealand Investment Corporation] their respective costs of suit herein, in the respective amounts set forth opposite their names below as follows: ...” (Emphasis added.)

We believe that appellants in this case are entitled to recover their costs. As stated in McMahan’s of Long Beach v. McMahan Service Corporation, 145 Cal.App.2d 607, 609-611 [302 P.2d 847] :

“Section 1032, Code of Civil Procedure, provides that ‘In the superior court, except as otherwise expressly provided, costs are allowed of course: . . . (b) To the defendant upon a judgment in his favor in special proceedings and in the actions mentioned in subdivision (a) of this section, or as to whom the action is dismissed.’ (Emphasis added.)