Pacific General Contractors, Inc. v. Slate Construction Co.

251 P.2d 454, 196 Or. 608, 1952 Ore. LEXIS 281

• Court: Oregon Supreme Court
• Decided: December 3, 1952
• Status: Published

Opinions

ON MOTION TO DISMISS THE APPEAL

LUSK, J.

A motion to dismiss the appeal was heretofore filed by the plaintiff and denied without opinion, with leave to renew it upon the argument. The motion having been renewed, we have reconsidered it.

The action is one for money had and received in which the plaintiff, Pacific General Contractors, Inc. (hereinafter called Pacific) sued the defendant, Slate Construction Company for $43,844.00 and recovered a judgment for $38,844.00. There was but one cause of action pleaded, but the proof disclosed that numerous items entered into the amount for which judgment was granted. Among these was an item of $7,800.00, represented by a check for that amount drawn by plaintiff in favor of defendant and the proceeds of which the defendant received. Defendant claimed in its testimony that the check was given as consideration for the transfer to plaintiff of defendant’s equity in two pieces of road construction equipment known as DW-10 caterpillar carryalls. Plaintiff, on the other hand, contended that it had never received any consideration for the check. Apparently (although there are no specific findings on the issue) the court held with the plaintiff and included the sum of $7,800.00 in question in the amount of the judgment awarded to the plaintiff. The implication of that ruling, the plaintiff says, is that the defendant did not transfer its interest in the equipment to plaintiff.

In the case of Glaser et al. v. Slate Construction Company, this day decided, the defendant, Slate Construction Company, filed a counter-claim to recover from the plaintiffs therein the reasonable rental value of various pieces of highway construction equipment, including the identical DW-10 caterpillar carryalls involved in the $7,800.00 transaction in the instant case. It appears that during the trial of the Glaser case Slate Construction Company, by its counsel and by its president as a witness, sought to justify the company’s claim of ownership of the DW-10’s by what is claimed to be the decision in the present case that Pacific had never acquired Slate Construction Company’s interest in that property. Among other things, counsel for Slate Construction Company in the Glaser case offered in evidence the judgment in the case at bar, as Avell as the pleadings, the brief on behalf of Pacific (plaintiff here), and the entire evidence for the stated purpose of shoAiúng that Slate Construction Company, and not Pacific, owned the DW-10’s at the time of the transaction involved in the claim in the Glaser ease. The evidence was admitted over objection of the plaintiffs. The ground of the present motion is that by taking this position the defendant acquiesced in the judgment from which this appeal is taken and recognized its validity.

The general rule is that a party cannot claim the benefit of a judgment and at the same time appeal from it. The right to proceed on the judgment and enjoy its fruits and the right of appeal are not concurrent. On the contrary, they are totally inconsistent. An election to take one of these courses is, therefore, a renunciation of the other. Cottrell v. Prier, 191 Or 571, 575, 231 P2d 788; Barnes v. State Industrial Accident Commission, 112 Or 41, 43, 228 P 684; Graves v. State Industrial Accident Commission, 112 Or 143, 148, 223 P 248; Portland Construction Co. v. O’Neil, 24 Or 54, 32 P 764; Moore v. Floyd, 4 Or 260. The same rule has been held applicable to a party who acquiesces in a part of a judgment while attempting to appeal from the remainder. West v. Broadwell, 124 Or 652, 265 ; Bush v. Mitchell, 28 Or 92, 41 P 155. But as to this class of cases the rule is thus stated: “When the provisions of a judgment are so closely connected and mutually dependent, that a reversal as to one would render necessary the reversal of the others, then a party cannot take the benefit of some of such provisions and still retain the right to appeal.” State v. Wells, Fargo & Co., 64 Or 421, 425, 126 P 611, 130 P 983; Inverarity v. Stowell, 10 Or 261, 265. And see Bush v. Mitchell, supra. Conversely, in the absence of such close connection and mutual dependence, a party may take the benefit of a part of the decree and still retain his right to appeal, as was held in State v. Wells, Fargo & Co., supra. This seems to be the law generally. Thus it is said in 4 CJS 398, Appeal and Error, §212: “WThere a judgment or decree relates to two or more distinct matters, or demands, acquiescence therein as to one of such matters or demands will not bar an appeal as to the others.” See, also, 2 Am Jur 978, Appeal and Error, § 215. A valuable annotation upon this subject, entitled “Bight of appeal from judgment or decree as affected by acceptance of benefit thereunder ’ ’ may be found in 169 ALR 985.

Of course, in this case, the judgment being against Slate Construction Company, it can scarcely be said that it accepted the benefits of the judgment, or any part of it, as in cases where one who is awarded a judgment for less than he demands, accepts the lesser sum and still attempts to appeal. See Bush v. Mitchell, supra, and cases cited in 169 ALR 989. If defendant has waived its right to appeal it is because it has attempted to take advantage of the judgment affirmatively in another suit and thereby recognized its validity. 2 Am Jur 974, Appeal and Error, § 210. For other illustrations of waiver of the right of appeal by collateral recognition of the validity of the judgment appealed from, see Lange v. Devlin, 80 Or 238, 156 P 260, and Fluhrer v. Bramel, 158 Or 694, 72 P2d 47, 73 P2d 265, 77 P2d 824.

We do not have here a judgment with several provisions. Whether the rule applicable to such a judgment can ever be invoked, where the evidence discloses that the conduct asserted to be a waiver of the right of appeal relates to a part only of a general judgment, based upon a single cause of action, is a question which we find it unnecessary to decide. For a discussion of this point see 169 ALR 1029.

The decisive inquiry here is whether the defendants’ offer in evidence in the Glaser ease of the judgment in this case could in any view be deemed such an acquiescence in or recognition of the validity of such judgment as to constitute a waiver of the right to appeal therefrom. In our opinion it could not for the reason that the judgment was not admissible in evidence in the Glaser case. The plaintiffs in that ease were not parties, nor in privity with either of the parties, to the case in which that judgment was rendered. As to them the judgment was res inter alios acta and could not properly be received “for the purpose of proving the facts recited in the judgment.” Vanderpool v. Burkitt, 113 Or 656, 666, 234 P 289. See, also, 30 Am Jur 951, Judgments, § 220. In these circumstances the correct rule, we think, is stated in 169 ALR 1005 as follows:

‘ ‘ The principle of waiver which prevents a party from prosecuting appellate proceedings to reverse a judgment or decree after he has accepted or pursued an advantage under it, is held by many courts to apply not only to cases where the advantage is taken directly under the favorable provisions of the adjudication, but to cases where it is taken collaterally and extraneously. To make it applicable, clearly something more must be shown that some expression of satisfaction, or of intention to abide by the decree, made either in court or out of court, if the legal situation is not thereby changed. The appellant must have voluntarily taken some such legal advantage, or put the judgment to some such legal use, as itself to operate as a binding waiver. ’ ’ (Italics supplied.)

No change in the legal situation was, or could have been, brought about by offering or receiving in evidence in the Glaser case the judgment in the case at bar, and therefore no waiver of the right to appeal from that judgment resulted.

The motion to dismiss the appeal is therefore denied.