Graham v. Alchian

STURTEVANT, J.

The plaintiff, hereinafter called the appellant, commenced an action against the defendant, hereinafter called the respondent, to recover a certain automobile, or its value, alleged to be seven hundred dollars. Judgment went in favor of the appellant in the sum of seven hundred dollars and interest at seven per cent from the date of his demand made on the respondent for possession. Because he was not awarded damages for detention, the appellant appealed under section 953a of the Code of Civil Procedure from -that part of the judgment that denied him such additional damages. Thereafter the respondent appeared in this court and moved to dismiss the

[264]

appeal. In support of Ms motion the respondent showed this court that the judgment appealed from was1 entered April 14, 1920; that the appellant appealed April 15, 1920; that on September 13, 1920, the appellant took out a writ of execution, and on October 1, 1920, the appellant satisfied the judgment in the trial court.

The appeal from the judgment and the motion to dismiss have both been submitted and both are before us for our consideration.

In view of the conclusions which we have reached concerning the merits of the motion, it will not be necessary for us to determine the merits of the appeal from the judgment.

[1]

If the defendant, the losing party in the trial court, had taken the appeal, and had involuntarily paid the judgment entered against Mm, it is settled law that such payment would not affect Ms right to have the appeal heard on its merits.

(Patterson

v.

Keeney,

165 Cal. 465, [Ann. Cas. 1914D, 232, 132 Pac. 1043].) But a party cannot accept the benefit or advantage given him by an order and then seek to have the order or judgment reviewed.

(County of San Bernardino

v.

County of Riverside,