MacLeod

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…