Walnut Irrigation Dist. v. Burke

California Supreme Court Aug 1, 1910 No. L.A. No. 2526.Published

Before: Shaw, Angellotti

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Holding. The court held that an appellant is not estopped from appealing a judgment after accepting costs if the appeal seeks a modification that does not require a new trial or affect the right to the costs already received. The motion to dismiss was referred to the department for consideration on the merits.

Issues

Whether the acceptance of costs awarded in a judgment estops a party from appealing the entire judgment.
Whether an appeal may be maintained if the relief sought involves a modification of the judgment rather than a new trial.

Disposition. Motion to dismiss referred to the department for further consideration.

Quotations verified verbatim against the opinion

“the right to proceed on the judgment and enjoy its fruits, and the right to appeal, are not concurrent, but wholly inconsistent, and an election to assert one right is a waiver and renunciation of the other.”

Synopsis

Appeal from: Unfavorable Part of Judgment—Satisfaction of Favorable Part—General Bule—Estoppel.—The general rule is that if a party to a judgment accepts payment or satisfaction of a part thereof which is favorable to him, and that part is of such a character that the part adverse to him cannot he reversed without affecting .the part which is in his favor and requiring the reversion of that part also, the party so accepting the fruits of a part of the judgment in his favor is estopped from prosecuting an appeal . from those parts which are against him.

Id.—Dependent and Inconsistent Provisions—Election—Waiver.— Where the favorable and unfavorable parts of a judgment are not ' concurrent, but dependent and inconsistent provisions, the election to proceed on the favorable part of the judgment and enjoy its fruits, is a waiver and renunciation of the right to appeal from the unfavorable part.

Id.—Limitation of Bule—Payment of Judgment for Costs—Appeal for Greater Belief—Modification of Judgment.—A limitation to the general rule exists where, a judgment for costs has been paid, and the object of the appeal is to secure greater relief sought under the complaint, which may be awarded by the modification of the judgment without a new trial, leaving the part of the judgment for costs still in force and unaffected.

Opinion — Shaw

SHAW, J.

This is a motion by the plaintiff to dismiss the defendants’ appeal from the judgment.

The controversy involved in the case is the respective rights of the plaintiff and defendants in the use of certain water diverted from the San Gabriel River. The judgment of the court below is that each party is entitled to a certain portion

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of the water, to be used in a certain manner at specified times, and that each be enjoined from interfering with the use of the water to which the other is entitled. It is also adjudged that the defendants recover of the plaintiff their costs laid out in the action. After the decision was filed the defendants filed a memorandum of their costs. Before the judgment was drawn or entered the plaintiff paid and the defendants accepted the amount of the costs as stated in said memorandum. The defendants have appealed from the judgment “and from each and every part, and the whole thereof.” The ground of the plaintiff’s motion to dismiss the appeal is that, by the acceptance of' payment of the costs awarded to them by the judgment, the defendants are estopped and barred from prosecuting an appeal from the whole, or any part of the judgment, of which the judgment for costs is a part.

There is no doubt that the general rule is that if a party to a judgment accepts payment or satisfaction of a part thereof which is favorable to him and that part is of such a character that the part adverse to him cannot be reversed without affecting the part which is in his favor and requiring the reversal of that part also, the party so accepting the fruits of a part of the judgment in his favor is estopped from prosecuting an appeal from those parts which are against him.

(Turner

Markham,

152 Cal. 246, [92 Pac. 485], and cases there cited.)

The following statement of the rule, taken from Baylies on New Trials, page 18, section 7, has been approved by this court: “If all .the provisions of a judgment are connected and dependent, so that a part cannot be reversed without a reversal of the whole, a party cannot proceed to enforce such portions of the judgment as are in his favor, and appeal from the part which is against him. In such case the right to proceed on the judgment and enjoy its fruits, and the right to appeal, are not concurrent, but wholly inconsistent, and an election to assert one right is a waiver and renunciation of the other.”

Walnut Irrigation Dist. v. Burke

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Synopsis

Opinion — Shaw

SHAW, J.

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Concurrence — Angellotti

ANGELLOTTI, J.

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