Turner v. Markham

HENSHAW, J.

Plaintiff, a judgment creditor of defendant, successfully undertook to subject the homestead of defendant to execution, under sections 1245

et seq.

of the Civil Code. The homestead property was sold for about twenty thousand dollars. Defendant Markham has taken this appeal from the court’s order and judgment so subjecting the homestead to execution sale. Pending his appeal he accepted from the sheriff five thousand dollars, to which he was entitled as the amount of his homestead exemption. Respondent now moves to dismiss his appeal upon the ground that having accepted the fruits of the judgment, he is estopped from further prosecuting his appeal from it. It is, of course, the general rule that a party litigant cannot accept the benefits of a judgment and appeal from it. He has his option to proceed with his appeal or to accept what the judgment may award him and forego his appeal. If he does accept the fruits of the judgment his election so to do estops him from further prosecution of the appeal. It is, in effect, his affirmance of the validity of the judgment against him.

(People

v.

Burns, 78

Cal. 645, [21 Pac. 540];

In re Baby, 87

Cal. 200, [22 Am. St. Rep. 239, 25 Pac. 405];

Estate of Shaver,

131 Cal. 219, [63 Pac. 340];

Storke

v.

Storke,

132 Cal. 349, [64 Pac. 578];

County of San Bernardino

v.

County of Riverside,

135 Cal. 618, [67 Pac. 1047].)

By appellant, however, it is argued that this is not the simple case of a judgment creditor accepting the fruits of the judgment; that, in any event, he was entitled to the five thousand dollars which he took, and that the acceptance of the five thousand dollars, which was unquestionably his, should not be held to destroy his right to have determined the question as to whether or not his homestead should have been subjected to execution process and sale. Moreover, he contends that his acceptance of the five thousand dollars was not voluntary, but was under a certain sort of legal compulsion, because if he had refused to accept the money and allowed it to remain in the hands of the sheriff for more than six months, pending the determination of his appeal, that money in turn would have been liable to seizure at the hands of his creditors.