Freeman

— This is an appeal by defendants from an order vacating a previous order which denied plaintiff’s motion to tax costs.

The order appealed from was entered in an action dismissed pursuant to section 834 of the Corporations Code. The section provides that in a suit brought in the right of a corporation by a holder of shares or voting trust certificates representing shares, the court may require the plaintiff to furnish security for reasonable expenses, including attorney’s fees, that may be incurred by the defendant and shall dismiss the suit if the security is not furnished. A blank space for the costs to be awarded was left in the judgment of dismissal, and within ten days after entry of the judgment, on August 25, 1958, defendants served plaintiff with a memorandum of costs and disbursements in the amount of $7,651, including $7,500 for attorney’s fees. A motion to tax costs was not filed within five days after the service of a copy of the memorandum of costs as provided in section 1033 of the Code of Civil Procedure, and the clerk filled in the amount of $7,651 as costs in the blank space left in the judgment. 1

On September 4, 1958, the clerk of the court received by mail a…