Alamitos Land Co. v. Shell Oil Co.

PRESTON, J.

Motion to dismiss appeal.

Respondent moves herein the dismissal of defendant’s appeal in so far as it applies to four separate provisions of the final judgment of the court in this cause. The motion is founded upon the well-recognized principle expressed by this court as follows: “The right to accept the fruits of a judgment and the right of appeal therefrom are not concurrent. On the contrary, they are totally inconsistent. An

[214]

election to take one of these courses is, therefore, a renunciation of the other.”

(Estate of Ayers,

175 Cal. 187, 190 [165 Pac. 528, 529].)

It seems that this motion is but a forerunner of several appeals in the above-entitled cause which must later receive attention and which grow out of the relationship of lessor and lessee between the plaintiff and defendant respectively in connection with certain highly productive oil property located at Signal Hill, Los Angeles County. In 1921 plaintiff leased these lands to defendant and this agreement was supplemented in 1924 by a later one. For several years the parties have been operating under these contracts and some thirty-nine producing wells have been drilled and are still producing large quantities of oil. A dispute has arisen between the parties as to whether a proper accounting has been rendered by defendant to plaintiff. Based upon the alleged misconduct of defendant, plaintiff sought by this action not only a judgment for the items not accounted for but also for an out and out forfeiture and cancellation of the lease. The cause was put at issue and after a prolonged trial the court gave a money judgment for plaintiff covering several items aggregating the sum of $522,895.11, being for the said so-called back royalties and kindred items. The court concluded its judgment by paragraph eighth thereof, which reads as follows:

“That plaintiff have judgment declaring the termination of all of the right, title, interest and equity of said defendant, in, to and under said lease of January 3rd, 1921, and said contract of March 14, 1924, provided, however, that said defendant shall be relieved of such forfeiture in the event that it pays to plaintiff, on or before the 29 th day of August, 1932, all sums for which judgment is herein given.”