Kirk v. Rutherford

California Court of Appeal Dec 9, 1955 No. Civ. 21223Published

Before: White

AI Brief

AI-generated · verify before citing

Holding. The court held that the plaintiff waived his right to appeal the order requiring him to pay the guardian ad litem's fees because he subsequently sought and obtained the inclusion of those same fees in his own cost bill and judgment. By taking inconsistent positions, the plaintiff is estopped from challenging the order.

Issues

Whether a party waives the right to appeal an order by subsequently seeking and accepting benefits derived from that same order.
Whether a party is estopped from challenging an order after incorporating the subject matter of that order into a judgment for their own benefit.

Disposition. dismissed

Quotations verified verbatim against the opinion

“By his motion to have the $225 included in his memorandum of costs and in the judgment as corrected, plaintiff effectively waived his right to appeal from the minute order requiring him to pay the fee of the guardian ad litem.”

“The defendant may not play fast and loose with the court in this fashion. He cannot in one breath say the judgment is valid,—obtain relief thereby; and in the next, say it is invalid.”

WHITE, P. J.

Plaintiff was awarded judgment for personal injuries and property damages incurred in a collision of plaintiff’s automobile with one owned by one of the defendants and driven by the other defendant, his minor son. After service of summons on the minor defendant, who was then

[682]

over 14 years old, and no appearance by him, on plaintiff’s motion Richard P. B. Tyson was appointed guardian

ad litem

of said minor defendant. Tyson's motion to be relieved of the guardianship was opposed by plaintiff and denied by the court. Pie appeared and defended. No appeal has been taken from the judgment. It is not in the record on the instant appeal, nor does the date of its entry appear.

A minute order, made February 24, entered February 28, 1955, and reading as follows: “In the matter of the manner or method of paying the fee of the Guardian ad Litem herein, heretofore fixed in the sum of $225.00 on January 20, 1955, plaintiff is ordered to pay said fees as follows: $50.00 forthwith, $50 on March 15, 1955, and the balance on or before April 1, 1955,” is the order from which the instant appeal was taken.

On March 4, 1955, the guardian

ad lit era’s

motion to tax costs was heard and, pursuant to stipulation between the parties in open court, a $25 fee for an expert witness was stricken therefrom and “fees of Guardian ad Litem in the sum of $225.00” was added to plaintiff’s cost bill. The court then made its order to that effect and correcting the judgment theretofore entered so that plaintiff’s costs taxed therein be $283.20 instead of $83.20. Written order was made and filed March 9, 1955, and entered March 28, 1955. No appeal has been taken from that order.

Respondent’s contention is that, when plaintiff moved on March 4th that his cost bill and the judgment be amended to include the fee required to be paid by him under the provisions of the minute order of February 24th, he sought and accepted the only benefit that could accrue to him under that order, and thereby he waived his right to appeal therefrom. There having* been no appeal from the judgment as corrected to include the amount of such fee, it is obvious that, if the minute order from which the instant appeal was taken should be reversed, plaintiff’s said judgment would then include $225 costs not paid by him.

Kirk v. Rutherford

AI Brief

WHITE, P. J.

More from California Court of Appeal

Related research

AI Brief