Opinion
Docket No. 7829.
May 22, 1931.
APPEAL from a judgment of the Superior Court of Alameda County. Leon E. Gray, Judge. Affirmed.
The facts are stated in the opinion of the court.
Alfred J. Hennessy and William J. Gloria for Appellant.
L. Gonsalves for Respondent.
Plaintiff sued for libel. Before trial he voluntarily dismissed as to defendant Roderick and judgment was entered for her. She filed a cost bill, claiming $100 as counsel fees. Plaintiff moved to tax costs; his motion was denied; and he appeals from the order upon typewritten transcripts.
[1] Respondent was entitled to the allowance for attorney's fees under section 7 of the act of 1871 (Stats. 1871-72, p. 533), which reads: "In case the action is dismissed, or the defendant recover judgment, he shall be allowed $100.00 to cover counsel fees. . . ." ( Caffey v. Mann, 3 Cal.App. 125, 126 [ 84 P. 424]; Hills v. Shaffer, 96 Cal.App. 520, 522 [ 274 P. 388]; Ream v. Barr, 108 Cal.App. 172 [ 291 P. 451]; Wheatland v. Maloney, 110 Cal.App. 288 [ 294 P. 499].) That when two or more defendants are sued jointly in actions of this character each defendant is entitled to the allowance for counsel fees is the rule of Hills v. Shaffer, supra, and the cases following.
Appellant argues that these cases are not applicable because he has not dismissed the action as to all defendants; but the rights of respondent are not dependent upon what appellant may do as to other parties sued. Her right to recover costs and counsel fees accrued when the action was dismissed as to her, and, in any event, when judgment was entered in her favor. The statute reads: "In case the action is dismissed or the defendant recover judgment." Such judgment was recovered, it was not appealed from and is now final.
The order is affirmed.
Sturtevant, J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on June 20, 1931, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 20, 1931.