In July, 1952, plaintiff brought this action to enjoin defendants from using plaintiff's trade name, or any simulation thereof, and for damages. The trial court issued a temporary injunction. An appeal was taken but it was later dismissed.
The case not having been brought to trial, the defendants, in March, 1955, moved to dismiss the action for lack of prosecution. Neither the notice of motion nor the affidavit made any reference to costs. The motion was granted on March 23d without an appearance in opposition. The minute order, which was entered on March 25th, did not expressly award costs to defendants. A formal judgment of dismissal, dated March 24th, contained a provision in longhand that defendants have judgment for their costs. This appears to have been written in under the direction of the trial judge. The judgment and defendants' memorandum of costs were filed on March 25th.
On April 20, 1955, the trial court, on its own motion, made a minute order amending the March 23, 1955, minute order nunc pro tunc by adding thereto the following: "Defendants are given judgment for their costs ..."
In January, 1956, plaintiff noticed a motion
It is plaintiff's position that its suit was in equity; that therefore the award of costs was discretionary under section 1032, subdivision (c), Code of Civil Procedure;
Defendant, McMahan Service Corporation, argues that it was entitled to its costs as "of course" under the express language of section 1032, subdivision (b), Code of Civil Procedure; that the failure to expressly provide therefor in the order of March 23d was a clerical error and that the court had jurisdiction, sua sponte, to correct it.
We have concluded that the position of the defendant is sound and that the order must be affirmed.
Section 1032, Code of Civil Procedure, provides that "In the superior court, except as otherwise expressly provided, costs are allowed of course: ... (b) To the defendant upon a judgment in his favor in special proceedings and in the actions mentioned in subdivision (a) of this section, or as to whom the action is dismissed." (Emphasis added.)
The judge undoubtedly considered that the order of dismissal carried with it costs for defendants because when a formal judgment of dismissal
Thus the state of the law prior to 1933 was precisely that which plaintiff now urges upon us. By the addition in 1933
It is apparent from the foregoing that subdivision (c) of section 1032 is not here applicable since dismissals are specifically provided for and governed by subdivision (b) of said section. Merlino v. Fresno Macaroni Mfg. Co., 74 Cal.App.2d 120 [168 P.2d 182], relied on by plaintiff, lends no support for its position. That case does not deal with the instant problem nor does it remotely bear upon it.
The order of February 2, 1956, (designated "judgment" in the notice of appeal) is affirmed.
Moore. P.J., and Ashburn, J., concurred.
"In the superior court, except as otherwise expressly provided, costs are allowed of course:
"(a) To plaintiff upon a judgment in his favor: in an action for the recovery of real property; in an action to recover the possession of personal property; in an action for the recovery of money or damages; in a special proceeding; in an action which involves the title or possession of real estate or the legality of a tax, impost, assessment, toll, or municipal fine.
"(b) To the defendant upon a judgment in his favor in special proceedings and in the actions mentioned in subdivision (a) of this section, or as to whom the action is dismissed. When there are several defendants in an action mentioned in subdivision (a) of this section, not united in interest, and making separate defenses by separate answers, and plaintiff fails to recover judgment against all, the court must award costs to such of the defendants as have judgment in their favor. [Italics added.]
"(c) In other actions than those mentioned in this section, costs may be allowed or not, and, if allowed, may be apportioned between the parties, on the same or adverse sides, in the discretion of the court."