152 P. 943 | Cal. Ct. App. | 1915
This is an appeal prosecuted by defendant from an order of court taxing costs.
The action was one of eminent domain instituted by plaintiff against defendant and others to condemn a strip of land for railroad purposes one hundred feet in width and extending a distance of sixteen miles through a tract eighteen thousand acres in extent. After issue joined, and before trial, plaintiff served and filed a notice stating that it abandoned the proceeding pursuant to the provisions of section 1255a, of the Code of Civil Procedure. Thereupon the court, upon motion of the defendant, in accordance with the provisions of said section, caused to be entered a judgment of dismissal of the action, wherein it was adjudged that defendant have and recover "his proper costs and disbursements incurred herein, including necessary expenses incurred by him in preparing for trial and reasonable attorney fees, amounting to the sum of __________ dollars." Thereafter, as provided in section
Upon the hearing of the motion, defendant (appellant here) objected to the court considering any ground or reason in support of the motion other than the grounds specified therein and assigned as reasons for striking the items from the memorandum, namely: That the items were unlawful and not properly taxable as costs. This objection was overruled and, without any counter-affidavit or evidence on the part of plaintiff controverting the prima facie showing made by the verified memorandum of defendant, he was required by the court to produce further evidence in support of the fact established by his affidavit that the attorney's fee claimed was proper and reasonable in amount for the services performed.
Our opinion is that in so ruling the court erred. Section 1255a of the Code of Civil Procedure, provides that upon the abandonment of said proceeding a judgment shall be entered dismissing the same "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." Under section
An application to have the court tax costs is made by motion. (Carpy v. Dowdell,
Upon the face of the memorandum, the claim for attorney's fees as provided by section 1255a was as necessary, proper, and legal as that for fees paid to the officers of the court or for the attendance of witnesses. As stated, being verified it constituted a prima facie showing which, in the absence of any evidence to the contrary, should control the decision of the court. (Barnhart v. Kron,
As to the fee of $7.50 paid to the clerk of the district court of appeal, the grounds specified were sufficient for the reason that the fee so paid was not legally chargeable as costs against the plaintiff in the action. The application for the writ of mandate was based upon the assumption that the court had refused to perform a duty which the law imposed upon it. Section
The order of the court in striking from the memorandum the item of $7.50 paid as a fee in the mandamus proceeding, is affirmed; and its order in reducing the attorney's fee of two thousand two hundred and fifty dollars, as claimed in the memorandum to be necessary, proper, and reasonable, to the sum of one thousand five hundred dollars, is reversed, and the court directed to make an order taxing defendant's costs for attorney's fee at the sum of two thousand two hundred and fifty dollars as claimed in his memorandum of costs filed in said proceeding.
Conrey, P. J., and James, J., concurred.