County of San Bernardino v. County of Riverside

HARRISON, J.

Motion to dismiss the appeals.

Judgment herein was entered by default against the defendant, March 14, 1901, and on April 5, 1901, the superior court set the default and judgment aside upon the ground that they had been entered through the mistake, inadvertence, surprise, and excusable neglect of the defendant, but ordered, as a condition for setting the same aside, that the defendant pay to the plaintiff two hundred and fifty dollars as for costs and expenses. The defendant complied with this condition, and paid' the said sum of money to the plaintiff, and upon a proper showing thereof the court made an order, April 25th, reciting this fact, and ordering that the said default and judgment be set aside. June 3, 1901, the plaintiff appealed from each of these orders. The defendant has moved to dismiss the appeals upon the ground that by receiving the money from the defendant the plaintiff has acquiesced in the order, and thereby waived its right to appeal therefrom.

The order of April 5th, being conditional upon the payment by the defendant of the sum of money therein named, was

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merely provisional, and was superseded by the subsequent order made after the defendant had complied with this condition. If the plaintiff had been dissatisfied with the first order, it should have appealed therefrom before the defendant accepted the condition and made the payment. Upon such acceptance and payment by the defendant, this conditional order became definitive. The second order merely established of record the fact that the defendant had complied with the condition, and that the previous provisional order had thereby become absolute.

The right to accept the fruits of a judgment or order, and the right to appeal therefrom, are not concurrent, but áre wholly inconsistent, and an election of either is a waiver and renunciation of the other.

(Estate of Shaver,

131 Cal. 219;

Storke

v.

Storke,

132 Cal. 349.)