Hampton v. Rose

MARKS, J.

This is a motion to dismiss an appeal from the judgment rendered herein on the ground that appellant has accepted the fruits, benefits and advantages of the judgment, since taking this appeal, and has consequently waived his right of appeal. The particulars in which it is claimed appellant accepted the benefits of the judgment are set forth in our opinion this day filed in a separate appeal in this case from an order appointing a receiver and bearing our number Civil 1548

(ante,

p. 167 [39 Pac. (2d) 447]). These facts need not be repeated here. The notice of appeal from the judgment Avas dated October 16, 1933, and was served and filed October 24, 1933.

Respondent relies upon the following eases in support of his motion:

Moore

v.

Morrison,

130 Cal. 80 [62 Pac. 268];

Estate of Shaver,

131 Cal. 219 [63 Pac. 340];

Storke

v.

Storke,

132 Cal. 349 [64 Pac. 578];

County of San Bernardino

v.

County of Riverside,

135 Cal. 618 [67 Pac. 1047];

Union Lithograph Co.

v.

Bacon,

179 Cal. 53 [175 Pac. 464];

Manos

v.

Codina,

199 Cal. 243 [248 Pac. 916];

Haggin

v.

Montague,

125 Ky. 507 [101 S. W. 893, 31 Ky. Law Rep. 123];

Horton