Opinion
Department One
Appeal from an order of the Superior Court of the city and county of San Francisco striking out a certain item from a cost-bill.
COUNSEL:
W. H. H. Hart, for Appellant.
Henry H. Ried, for Respondent.
JUDGES: Works, J. Paterson, J., and Beatty, C, J., concurred.
OPINION
WORKS, Judge
The appellant brought this action against the respondent to foreclose a mechanic's lien for plumbing work. The court rendered judgment of nonsuit against him. He appealed to this court, and the case was reversed and remanded for a new trial. (McIntyre v. Trautner , 63 Cal. 429.) Upon the return of the case to the court below he filed his cost-bill, including as one of the items of costs the sum of two hundred dollars for his attorney's fees in the supreme court. The court, on motion of the respondent, made an order striking out and disallowing this item of costs. Subsequently the case proceeded, and there was finding and judgment in favor of the respondent on the merits.
This appeal is from the order striking out the item of costs above mentioned.
The appellant contends that as he was successful in this court, he was entitled to his attorney's fees for services rendered here, and in support of this contention cites Rapp v. Spring Valley Gold Co ., 74 Cal. 532.
The case relied upon holds, and we think correctly, that the attorney's fees are not a part of the costs, but are, under the code, an incident to the foreclosure of the lien. This being the case, there can be no recovery for attorney's fees unless the plaintiff succeeds in his foreclosure proceeding. The court below having found against him on the merits, the lien, which is the basis upon which the right to recover the attorney's fees must rest, is gone, and the right to such attorney's fees must go with it. The fact that he was successful in the supreme court cannot affect the question. The final determination that the appellant had no lien was an adjudication of the controlling question, and was decisive of the point made on this appeal.
Order affirmed.