Haddad v. Pazar

BRAY, J. The sole question presented by plaintiff’s motion to dismiss defendants’ appeal from a judgment against them in favor of plaintiff is whether the payment into court of the amount of the judgment and the obtaining by defendants of an order satisfying the judgment bars defendants’ right of appeal from said judgment.

Recobd

In an action for personal injuries, plaintiff obtained judgment against defendants in the sum of $8,000, and plaintiff in intervention, Pacific Indemnity Company, obtained a $2,000 judgment. Defendants and plaintiff in intervention respec[697]lively moved for new trials. After their motions were denied, defendants appealed from all judgments against them and plaintiff in intervention appealed from the judgment in its favor.* .Thereafter defendants deposited in court the sum of $10,000 plus interest and costs then accrued on the respective judgments against them and moved the trial court for an order to enter satisfaction of both judgments. The court ordered both judgments satisfied. However, neither plaintiff nor plaintiff in intervention has accepted the moneys on deposit in court. Plaintiff moved this court for a dismissal of defendants’ appeal on the ground that their judgment has been satisfied.

Effect of Satisfaction of Judgment

In the notice of motion for order to enter satisfaction of judgment defendants set forth that plaintiff’s attorney had indicated a willingness to accept the result of the trial, that the amounts of the two judgments “represents the total amount recoverable against the defendants regardless of the outcome of any appeal by Pacific Indemnity Company now pending, and that the defendants have taken a protective appeal for the sole purpose of protecting their rights in the event of some adverse ruling by the appellate court in connection with the appeal of Pacific Indemnity Company and that it is the desire of the defendants to pay and satisfy the” Pacific Indemnity judgment “and to stop the running of interest thereon. ”†

“It is the general rule that the voluntary acceptance of the benefit of a judgment or order is a bar to the prosecution of an appeal, since the right to accept the fruits of the judgment and the right to appeal therefrom are wholly inconsistent, and an election to take one is a renunciation of the other. [Citations.]” (Mathys v. Turner, 46 Cal.2d 364, 365 [294 P.2d 947].)