MacLeod v. Tribune Pub. Co.

• Decision Date: 19 February 1958
• Citation: 321 P.2d 881,157 Cal.App.2d 665
• Court: California Court of Appeals Court of Appeals
• Parties: Grover MacLEOD, Plaintiff and Appellant, v. TRIBUNE PUBLISHING CO., Inc., a California Corporation, First Doe, Second Doe, Doe Company, a Partnership and Roe Company, a Corporation, Defendants and Respondents. Civ. 17505.

Page 881

321 P.2d 881

157 Cal.App.2d 665

Grover MacLEOD, Plaintiff and Appellant, v. TRIBUNE PUBLISHING CO., Inc., a California Corporation, First Doe, Second Doe, Doe Company, a Partnership and Roe Company, a Corporation, Defendants and Respondents.

Civ. 17505.

District Court of Appeal, First District, Division 1, California.

Feb. 19, 1958.

Jay Graves, Donald MacLeod, Oakland, for appellant.

Price, MacDonald & Knox, Houlihan & Brown, Oakland, for respondent.

McMURRAY, Justice pro tem.

On April 5, 1956, plaintiff prepared a request for dismissal without prejudice, which was filed the same day. A notation to that effect was made on the clerk's Register of Actions. On April 30, 1956, a judgment of dismissal in favor of the defendants was filed, awarding attorney's fees in the sum of $100 to defendants, together with costs. This judgment was entered on May 2, 1956, the same day the defendants filed a memorandum of costs.

On May 4, 1956, plaintiff noticed a motion for the date of May 14, 1956, to vacate the order for attorney's fees and to tax costs. The basis for this motion was that the cost bill was filed too late. The court denied the motion to vacate the order for attorney's fees and costs and granted the motion to tax costs, taxing them at $316.50. This appeal is taken upon the ground that the court's order denying the motion to vacate the order for attorney's fees and its order taxing costs were erroneous.

The original judgment of April 30, 1956, awarding attorney's fees in the sum of $100 was entered in conformity with the provisions of section 836, Code of Civil Procedure, which expressly authorizes such award upon a dismissal by plaintiff of a libel action, which was the form of action in the instant case.

Appellant in this appeal contends that the cost bill was filed too late and that his motion to vacate the order for court costs and attorney's fees should have been granted. The appellant's objection to the filing of the cost memorandum was timely made, which is necessary in order to preserve the objection on appeal (San Francisco, etc., School Dist. v. Board of National Missions, 129 Cal.App.2d 236, 276 P.2d 829), as it appears that the appellant's notice of motion in this case was filed within two days after the filing of the memorandum of costs.

Appellant's motion appears to have been predicated upon Code of Civil Procedure, section 1033, which provides in part: 'In superior courts * * * the party in whose favor the judgment is ordered, and who claims his costs, must serve upon the adverse party, and file at any time after the verdict or decision of the court, and not later than ten (10) days after the entry of the judgment, a memorandum of the items of his costs and necessary disbursements in the action or proceeding * * *.'

We have before us, therefore, the question as to whether 'the entry of judgment' is the entry of the notation in the clerk's register that a 'dismissal without prejudice' was filed on April 5, or the entry of the dismissal judgment on May 2.

There are two cases decided before the 1955 amendment to section 1033 of the Code of Civil Procedure which state by way of dicta that 'judgment' means the entry of the dismissal in the clerk's register. The section then required that the memorandum of costs be filed 'not later than five (5) days after the verdict, or, if the action is tried without a jury, not later than five (5) days after notice of the entry of the judgment.' These cases are Fisher v. Eckert, 94 Cal.App.2d 890, 212 P.2d 64, and Hauptman v. Heebner, 34 Cal.App.2d 600, 94 P.2d 48. Neither of these cases is here governing, however, since the code section has been amended since their decision. The section, as will be noted, before these decisions required the filing of the memorandum to be after notice of entry of judgment in court cases, which provision is omitted from the amendment made to section 1033 in 1955.

Appellant argues that section 581(d) of the Code of Civil Procedure is governing here, and that the written dismissal of an action is in fact the judgment. It should be noted that the first paragraph of section 581(d) providing that such dismissals shall be effective for all purposes makes no provision for costs to the prevailing party. Section 1032 of the Code of Civil Procedure provides that a defendant, as to whom the action is dismissed, is entitled to his costs as a matter of course. Code of Civil Procedure, section 581(d), reads as follows:

'A written dismissal of an action shall be entered in the clerk's register or in the docket in the justice court, as the case may be, and is effective for all purposes when so entered.

'All dismissals ordered by the court shall be entered upon the minutes thereof or in the docket in the justice court, as the case may be, and such orders when so entered shall constitute judgments and be effective for all purposes, and the clerk in superior and municipal courts shall note such judgments in the register of actions in the case.'

The first paragraph of section 581(d) expressly provides that a written dismissal of an action which is entered in the...