THE COURT.

Action to quiet title against the McKeon Drilling Company, the appellant herein, and a large number of other defendants. Upon being served with process the McKeon Drilling Company appeared and filed a disclaimer under the provisions of section 739 of the Code of Civil Procedure. Upon the trial of the cause, as to other defendants, the trial court rendered judgment in favor of the plaintiffs, quieting their title to the premises as against all of the defendants, and in its judgment provided, "That the plaintiffs have and recover of and from the McKeon Drilling Company, a corporation, the sum of $350 as and for attorneys fees herein." It further provided: "That the plaintiffs have and recover of and from the defendant McKeon Drilling Company, a corporation, . . . their costs of suit and expenses herein incurred in the sum of $152.75." The McKeon Drilling Company appealed from that portion of the judgment above quoted. In support of its appeal it relies upon the provisions of section739 of the Code of Civil Procedure, which provides that in actions of this character, "If the defendant in such action disclaim in his answer any interest or estate in the property . . . the plaintiff cannot recover costs." [1] In support of its claim that the plaintiffs were not entitled to recover attorney's fees the appellant shows that upon the face of the complaint and also upon the face of the findings it appears affirmatively that the appellant upon the same date that the deed to the plaintiffs was executed had assigned and transferred all of its right thereunder to other parties, and that the appellant had thereby ceased to be a lessee of the premises in question and for a long time prior to the commencement of the action had not had any right, title or interest therein. Under these conditions, known to the plaintiff at the time they commenced this action, and in view of the appellant's disclaimer promptly filed therein, it would seem clear that the trial court was in error in awarding counsel fees as well as costs against this appellant. *Page 750

The respondents have filed no brief herein, nor have they otherwise responded to an order to show cause heretofore issued herein.

It is ordered that the judgment be modified by striking therefrom the portion thereof above quoted having relation to the award of counsel fees and costs against the appellant, amounting in the aggregate to the sum of $502.75, with interest thereon from the date of said judgment, and that as thus modified the judgment shall be and the same is hereby affirmed, the appellant to recover its costs upon appeal.