This appeal is from an order denying plaintiffs' motion to strike out the memorandum of costs of certain defendants and taxing said costs at the sum of $82.65. At the close of plaintiffs' case the court granted a nonsuit as to those defendants and judgment was entered in their favor for their costs.
[1] Appellants contend that a defendant is not entitled to recover his costs on the granting of his motion for a nonsuit. Section 581 of the Code of Civil Procedure provides: "An action may be dismissed, or a judgment of nonsuit entered . . . by the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury." Section 1024 provides: "Costs must be allowed of course to the defendant upon a judgment in his favor in the actions mentioned in section ten hundred and twenty-two, and in special proceedings." Under these provisions of the code the defendants were clearly entitled to costs. In Spinks v. Superior Court,26 Cal.App. 793 [148 P. 798], it is held that when a plaintiff dismisses the action pursuant to section 581 of the Code of Civil Procedure the defendant is entitled to recover costs. No reason appears why a different rule should govern where a nonsuit is granted on motion of the defendant under the same section of the code. *Page 587
Respondents admit that the court, through inadvertence, allowed the defendants an item of costs in the sum of $2.50 to which they were not entitled and consent that their costs be reduced accordingly.
The order appealed from is modified by reducing the amount taxed as costs to the extent of $2.50, and, as so modified, the order is affirmed, the respondents to recover costs of appeal.
Burnett, J., and Prewett, J., pro tem., concurred.