[1] The right to an award of costs is, of course, purely statutory. ( Estate of Johnson, 198 Cal. 469, 471 [ 245 P. 1089]; Bond v. United Railroads, 20 Cal.App. 124, 127 [ 128 P. 786].) Code of Civil Procedure section 1255a authorizes, upon the plaintiff's abandonment of an eminent domain proceeding, the recovery of "costs and disbursements, which shall include all necessary expenses incurred in preparing for trial and during trial and reasonable attorney fees."
The code authorizes the allowance of costs only, and the inclusion of "necessary disbursements" in the section requiring one who claims costs to file a memorandum of them does not authorize a litigant to collect from his unsuccessful adversary the amount of any expense which is not allowable as an item of "costs". ( Bond v. United Railroads, 20 Cal.App. 124 [ 128 P. 786].) [11] In his cost bill the plaintiff included the premium paid to a surety company "on attachment undertaking" and a premium paid to the surety "on alias attachment".
Attorneys' fees are only recoverable when specifically allowed by statute. ( Coburn v. Townsend, 103 Cal. 233 [ 37 P. 202]; Pacific Gas Elec. Co. v. Chubb, 24 Cal.App. 265 [ 141 P. 36]; Bond v. United Railroads, 20 Cal.App. 124 [ 128 P. 786].) Eminent domain proceedings are special proceedings and are governed by a separate and special chapter of the Code of Civil Procedure (part 3, title 7, sec. 1237 et seq.).
( Jeffers v. Screen Extras Guild, Inc., 134 Cal.App.2d 622, 623 [ 286 P.2d 30]; Wilson v. Board of Retirement, 176 Cal.App.2d 320, 323 [ 1 Cal.Rptr. 373]; Meyer v. City of San Diego, 132 Cal. 35, 36 [ 64 P. 124].) "It is not practicable for the Legislature to foresee all the various items of costs that arise in litigation, and as said in Bond v. United Railroads, 20 Cal.App. 124, 129 [ 128 P. 786], `Our supreme court has said that "the allowance or disallowance of items for expense and disbursements incurred upon the trial of the action must be left in nearly every instance to the discretion of the judge where the cause was tried" ( Miller v. Highland Ditch Co., 91 Cal. 103 [27 P. 536].)'" ( Maguire v. Corbett, 119 Cal.App.2d 244, 252 [ 259 P.2d 507].) [15] Where the question of necessity of the challenged item is debatable the allowance of same, as stated in Stenzor v. Leon, 130 Cal.App.2d 729, 735 [ 279 P.2d 802], "is within the discretion of the trial court and if no abuse of discretion is shown the action of the trial court will not be disturbed.
The code authorizes the allowance of costs only, and the inclusion of `necessary disbursements' in the section requiring one who claims costs to file a memorandum of them does not authorize a litigant to collect from his unsuccessful adversary the amount of any expense which is not allowable as an item of `costs.' ( Bond v. United Railroads, 20 Cal.App. 124 [ 128 P. 786].)" [4] It is clear from the applicable statutory provisions, and the decisions construing them, that the right of a successful litigant to recover from his adversary the amount of any given item of costs depends upon the fulfillment of these four essential conditions: (1) There must be a valid judgment awarding costs to the party claiming them; (2) the item must be one allowed by rule or by statute; (3) the amount claimed must have been actually incurred; (4) the amount claimed must be reasonable. Manifestly, condition (1), (2) and (4) are fulfilled in the instant case.
[2] The term "costs" means "those fees and charges which are required by law to be paid to the courts, or some of their officers" or an amount which is expressly fixed by law as recoverable as costs. ( Moss v. Underwriters' Report, Inc., supra, 12 Cal.2d 266; Bond v. United Railroads, 20 Cal.App. 124 [ 128 P. 786]; Blair v. Brownstone Oil Refining Co., 20 Cal.App. 316 at 317 [ 128 P. 1022].) [3] The defendant Borun Bros. and appellant were codefendants but were not adverse parties and neither was entitled to its costs as against the other.
The question really is whether its impounding was unnecessary in view of all the circumstances, and this was a question for the trial judge to decide. [11] It is not practicable for the Legislature to foresee all the various items of costs that arise in litigation, and as said in Bond v. United Railroads, 20 Cal.App. 124, 129 [ 128 P. 786], "Our supreme court has said that `the allowance or disallowance of items for expense and disbursements incurred upon the trial of the action must be left in nearly every instance to the discretion of the judge where the cause was tried' ( Miller v. Highland Ditch Co., 91 Cal. 103 [ 27 P. 536].)" [12] In Southern Calif. Collection Co. v. Napkie, 106 Cal.App.2d 565, 572 [ 235 P.2d 434], cited by the trial judge in his ruling on costs, the court held that "In a proceeding under section 689 . . . to determine a third party's claim to property seized on execution, the judgment carries costs as a matter of course."
No inference is to be drawn that we approve of any step in plaintiff's line of reasoning. His major premise is that the expression "costs and necessary disbursements" as used in section 13554 includes attorney's fees, contrary to the interpretation of a similar expression in section 1033 of the Code of Civil Procedure ( Moss v. Underwriters' Report, Inc., 12 Cal.2d 266, 274 [ 83 P.2d 503]; Bond v. United Railroads, 20 Cal.App. 124 [ 128 P. 786]) and despite the use of a similar expression in the very statute which declares that except as attorney's fees are "specifically" provided for, they are left to the agreement of the parties (Code Civ. Proc., § 1021). Nor is it clear how under the circumstances of this case the mere failure of the defendants to file charges of misconduct or of inefficiency against plaintiff (that is what the cited Education Code sections would have entailed) violated any right of his and thereby created in him a cause of action for damages.
The code authorizes the allowance of costs only, and the inclusion of 'necessary disbursements' in the section requiring one who claims costs to file a memorandum of them does not authorize a litigant to collect from his unsuccessful adversary the amount of any expense which is not allowable as an item of 'costs.' ( Bond v. United Railroads, 20 Cal.App. 124 [ 128 P. 786].)" The court therein held that the filing by the appellant of a surety bond in connection with which a premium was required was a privilege and not a duty — that a personal bond could have been filed for which no premium would have been required.
It has been held, on numerous occasions, that the right to recover costs is purely statutory and that, in the absence of statute, no costs can be recovered by either party. ( Williams v. Atchison etc. Ry. Co., 156 Cal. 140, [134 Am. St. Rep. 117, 19 Ann. Cas. 1260, 103 P. 885]; Bond v. United Railroads, 20 Cal.App. 124, [ 128 P. 786]; Kummeth v. Atkisson, 23 Cal.App. 401, [ 138 P. 116]; Fox v. Hale Norcross S. M. Co., 122 Cal. 219, [54 P. 731].) And in Sierra Union Water Mining Co. v. Wolff, 144 Cal. 430, [ 77 P. 1038], it was held that the allowance of costs does not depend upon the form or nature of the action, but upon whether or not the case comes within the terms of the statute relating to costs.