Abbott

This is an appeal from an order denying appellant’s motion to tax costs in an action of eminent domain. On May 14, 1929, the respondents gave notice that on the 20th they would move the trial court for an order dismissing the action and fixing the attorney’s fees to be allowed the respondents on the ground that the action had been abandoned by the city and another action started “covering the same matter”. The notice stated that it would be made on the records and files, including “affidavits now on file”, but what the affidavits were is not disclosed by the transcript before us. The court rendered a judgment of dismissal which was entered August 1, 1929, wherein it was recited that the plaintiff had failed to prosecute the action and had abandoned the same and wherein it was adjudged that the defendants should recover their costs, and this judgment has long since become final. The judgment appearing in the transcript shows the exact amount of costs, including attorney’s fees. On August 7th the appellant gave notice that on August 9th it would move to tax the costs claimed by the defendants on the grounds (1) that it was permanently enjoined from spending any money in the action,…