Opinion
Rehearing Granted July 23, 1931.
Appeal by plaintiff from a judgment of the Superior Court of Los Angeles County, Myron Westover, Judge, of dismissal of an action in eminent domain and from an order denying motion to tax costs. Affirmed.
Rehearing granted; THOMPSON, J. dissenting.
COUNSEL
Erwin P. Werner, City Atty., Frederick Von Schrader, Asst. City Atty., and Arthur W. Nordstrom and C. N. Perkins, Deputy City Attys., all of Los Angeles, for appellant.
J. Wiseman Macdonald, of Los Angeles, for respondent.
OPINION
IRA F. THOMPSON, J.
A condemnation proceeding was pending in the lower court, which was terminated by a judgment of dismissal and an allowance of costs, including attorney’s fees to the defendant Benevolent Realty Holding Company. There are two appeals involved herein, the one (7540) from the judgment of dismissal made and entered upon the motion of the defendant and respondent, and the other (7539) from the order denying the plaintiff’s motion to tax the costs of the defendant and respondent. The records by which these appeals are presented to us establish that the motion for judgment of dismissal and the opposition thereto were based upon the same grounds and facts as in the case of City of Los Angeles v. Sadie D. Griffith Abbott et al., defendants; Alice Virginia Hatfield, defendant and respondent (Cal.App.) 1 P.2d 538, this day decided. While there was no motion to tax costs in that case as there was in this, nevertheless there is no claim that the attorney’s fees, allowed as a part thereof, were or are excessive, the appellant here resting upon the same arguments as were put forward in the case just mentioned, to wit, that there was no abandonment of the action, and that, assuming an abandonment in fact, it was not of such a character under the law as to entitle the respondent to attorney’s fees.
So far, therefore, as the appeal from the order denying the motion to tax costs is concerned, it is governed and controlled by another one of those already disposed of in this series of appeals, that of City of Los Angeles v. Sadie D. Griffith Abbott et al., defendants; Julia Fanta, etc., et al., respondent (Cal.App.) 299 P. 807.
And even if that appeal were not thereby determined, it, as well as the appeal from the judgment of dismissal, would be governed by City of Los Angeles v. Sadie D. Griffith Abbott et al., defendants; Alice Virginia Haifield, respondent, mentioned above.
Judgment of dismissal affirmed. Order denying motion to tax costs affirmed.
We concur: CRAIG, Acting P. J.; ARCHBALD, Justice pro tem.