Schubert v. Reich

CARTER, J.

Plaintiff commenced an action with respect to a contract under which defendant was to grade and process dates owned by plaintiff. Defendant answered and cross-complained for compensation for grading work, and obtained a judgment for $7,287.16, and a declaration that he had a lien on the dates as security. Plaintiff’s motion for a new trial

[299]

on the ground of accident and surprise was granted “on the condition that the plaintiff and cross-defendant pay to Clyde Thomas, attorney for the defendant and cross-complainant, the sum of $75.00 as attorney fees within 5 days.” Apparently the condition of granting the motion imposed upon the moving party, plaintiff, was to defray the fees of defendant’s attorney in appearing at the time for trial, and, plaintiff not appearing, defendant obtained judgment. Defendant appealed (the pending appeal) from that order. The $75 was paid by plaintiff and accepted by defendant.

Plaintiff now moves to dismiss the appeal on the ground that by accepting the $75—the fruits of the order—defendant has lost his right to appeal.

It is the settled rule that the voluntary acceptance of the benefit of a judgment or order is a bar to the prosecution of an appeal therefrom. (See

San Bernardino

v.

Riverside County, 135

Cal. 618 [67 P. 1047];

Estate of Shaver,

131 Cal. 219 [63 P. 340];

Kenney

v.

Parks,

120 Cal. 22, 24 [52 P. 40];

Swallers

v.

Swallers,

89 Cal.App.2d 458 [201 P.2d 23];

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