Stockton Theaters, Inc. v. Palermo

PEEK, J.

This is a motion by defendant and cross-appellant Palermo (1) to dismiss plaintiff’s appeal on the ground that plaintiff by accepting the costs awarded to it in a judgment against said defendant has waived its right of appeal, and (2) to terminate and discharge certain attachments levied at plaintiff’s request on certain property owned by Palermo on the ground that plaintiff’s appeal was not filed within the time permitted by section 946 of the Code of Civil Procedure.

The present proceeding is the outgrowth of an action instituted by the theater corporation against Palermo and his attorney, the defendant Macomber, for an accounting and for restitution of certain theater premises owned by Palermo and leased to plaintiff. From the record before us it appears that the court in considering the accounting made by Palermo took testimony on approximately 35 separate items of account ; that during the course of said hearing the parties conceded some of said items to be proper charges; that Palermo conceded portions of other items to be improper and that as to the remaining items the court upon highly conflicting evidence determined them to be as found. Thereafter, on April 27, 1951, the court entered judgment for a portion of the amount plaintiff claimed to be due it from defendants. The decree provided that plaintiff have judgment for its costs against Palermo and that Palermo take nothing on his cross-complaint against plaintiff, that plaintiff take nothing as against the defendant Macomber, and that said defendant have judgment for his costs. On May 1, 1951, plaintiff served and filed its memorandum of costs and disbursements. Defendants then moved to tax costs and on May 16, 1951, the court made its order taxing costs in the sum of $122.50. On May 18, 1951, Palermo’s counsel drew their cheek in favor of plaintiff’s counsel in said sum and mailed the same to the latter who thereafter deposited said check in their trustee account. On May 7, 1951, plaintiff filed its notice of intention to move for a new trial and on June 5, 1951,

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the same was denied. On June 7, 1951, plaintiff filed its notice of appeal from said judgment and on June 25, 1951, defendant Palermo filed his notice of appeal therefrom.

While it is true that a party is held to have waived his right of appeal by acceptance of the benefits of a judgment