Cline

In this action the plaintiff proceeded under the “Street Opening Act of 1903,” and sought to condemn and take for street purposes certain land of the respondents. After trial and a verdict assessing the value of the land to be taken, an interlocutory judgment was entered whereby the property of the respondents was condemned to the use of the plaintiff upon the payment of the amount specified in the judgment. The compensation provided for by said judgment was not paid. Instead thereof, the city attorney, after being duly authorized thereto by the city council, moved the court for dismissal of the action, and a judgment of dismissal was entered. Thereafter, Upon motion of the respondents, the court set aside the judgment of dismissal and entered a new judgment of dismissal, awarding to respondents their costs, including the sum of $850 for attorney fees. From this judgment the plaintiff appeals, and this court is called upon to determine whether or not the lower court was authorized to allow attorney fees to the respondents.

Title VII of part III of the Code of Civil Procedure prescribes the general rules for the exercise of the right of eminent domain in this state. In said title…