Opinion
No. 71-013
Decided April 11, 1972. Rehearing denied May 2, 1972. Certiorari granted with limitations June 12, 1972.
Following stipulation of parties to the effect that, upon receipt of certain sum, clerk of trial court was directed to "enter a satisfaction" of case being appealed, defendant sought dismissal of the appeal.
Appeal Dismissed
1. APPEAL AND ERROR — Party — Accept Benefit — Judgment — Not Appeal — Unless — No Inconsistency. A party who accepts an award or legal advantage under any order, judgment, or decree, ordinarily waives his right to any review of the adjudication as may again put in issue his right to the benefit which he has accepted unless the decree is such that there is no inconsistency between such enforcement and the appeal.
2. Plaintiff — Entered Stipulation — Satisfaction of Judgment — Cannot Seek — Set Aside Judgment — Intent Immaterial. Inasmuch as reversal of judgment would require that total judgment amount be set aside pending determination of sum properly due plaintiff, plaintiff, who entered stipulation to satisfy the judgment, cannot seek to destroy the entire judgment amount while retaining the benefit thereof; and, under such circumstances, whether or not plaintiff actually intended to waive his right of appeal by virtue of the stipulation is immaterial.
Appeal from the District Court of Logan County, Honorable William A. Black, Judge.
Francis A. Benedetti, for plaintiff-appellant.
Sandhouse, Sandhouse Wilson, Charles H. Sandhouse, for defendant-appellee.
Plaintiff brought suit against defendant bank claiming that the bank, as pledgee of certain security, failed to account to plaintiff (Civil action No. 11296). After trial to the court, a judgment was entered in favor of plaintiff and against defendant in the amount of $5959.55. Plaintiff filed a motion for a new trial asserting that its judgment should have been much larger and, upon denial of that motion, filed notice of appeal. The notice of appeal was dated October 22, 1970, and designation of record was filed on the same date. An execution was issued out of the district court directed to the Sheriff of Logan County demanding the sum of $5959.55 which plaintiff had recovered against defendant.
On November 13, 1970, defendant filed a motion for stay of execution alleging that the defendant bank in a different action between the same parties, Civil action No. 11356 in the District Court of Logan County, had recovered a judgment against plaintiff for an amount in excess of plaintiff's judgment in this action and that said prior judgment was final.
Plaintiff then filed a motion requesting the court to determine priorities among its creditors, including the priority of the attorney's lien filed by plaintiff's attorney. The court entered an order November 16, 1970, staying the execution on the judgment until further order of the court.
Thereafter the following stipulation was entered into between the parties and approved by the court:
"The Court having determined that Francis A. Benedetti is entitled to a first lien upon any monies paid upon the judgment in Case No. 11296, and the parties agreeing that the amount of the claimed attorney's lien and costs to which Mr. Benedetti is entitled is $3,271.70, and the parties agreeing that the amount of the judgment in excess of said claimed attorney's lien in Case No. 11296 should be off-set against the judgment entered by the court in Case No. 11356, the Clerk of the District Court, upon receipt of the payment of $3,271.70 to apply upon the judgment in Case No. 11296, is directed to thereupon pay the said sum of $3,271.70 to Mr. Benedetti as satisfaction of his attorney's lien, and the Clerk of the District Court is thereupon directed to enter a satisfaction in the amount of $6,047.35 in Case No. 11296 and to enter in Case No. 11356 a partial satisfaction in the amount of $2,775.65.
Dated at Sterling, Colorado this 26th day February, A.D., 1971."
Thereafter defendant filed a motion in this court entitled "Motion to Dismiss Appeal or Plea in Bar to Proceedings on Appeal." This motion was denied without prejudice to the right of defendant to reassert the same in its brief. This was done and the matter was urged in oral argument before this court. We have determined that the motion is good, that the appeal should be dismissed, and that therefore we need not consider the other matters urged by plaintiff on appeal.
[1] The parties stipulated that the judgment which was under appeal in this case be satisfied and the stipulation was approved by the court. In Wilson v. Automobile Owners Association Insurance Co., 152 Colo. 431, 382 P.2d 815, the court stated, quoting 4 Am. Jur. 2d, Appeal and Error § 250:
"'A party who accepts an award or legal advantage under any order, judgment, or decree, ordinarily waives his right to any such review of the adjudication as may again put in issue his right to the benefit which he has accepted . . . unless the decree is such or the circumstances such that there is no inconsistency between such enforcement and the appeal.'"
Plaintiff acknowledges the general rule but argues that defendant has admitted owing the amount of the judgment and that plaintiff is entitled to collect the judgment which defendant admits owing and still appeal and attempt to get a judgment for a larger amount.
This argument is untenable under the facts presented. These claimed admissions were statements made by defendant's counsel during argument before the court in opposition to a motion to amend the judgment and in opposition to a motion for new trial. They do not bring plaintiff's position under the exception to the general rule. Because of the stipulation entered into to satisfy the judgment, the appeal became moot.
[2] Plaintiff further argues that the receipt given by its attorney to the clerk of the district court reserved its right to appeal. However, whether plaintiff actually intended to waive his right to appeal is immaterial. 4 Am. Jur. 2d, Appeal and Error, § 250; see Annot., 169 A.L.R. 985 at 1056. The reasoning applied by the court in Preluzsky v. Pacific Co-operative Cafeteria Co., 195 Cal. 290, 232 P. 970, is applicable here:
"The appeal herein was not taken from a portion of the judgment, but from the whole thereof, and even if it had been limited to the portion thereof which appellant now seeks to attack, it could not be modified in the manner which appellant desires except after the reversal of the whole thereof and the granting of a new trial. The trial court found as a fact that appellant is entitled to the precise amount which it has received. Even if it should be determined upon appeal that this finding is not supported by the evidence, it could not be corrected by the appellate court, and the only relief which could be granted would be the reversal of the judgment and remanding the case for a new trial. The effect thereof would be to disentitle the appellant to the $24,900 which it has heretofore received and retained. Appellant cannot be permitted to thus seek to destroy the entire judgment while retaining the benefit thereof."
Similarly, inasmuch as the amount of the judgment due plaintiff was determined on conflicting evidence, a reversal of the judgment would require that that amount be set aside in its entirety pending a trial court determination of the sum properly due plaintiff.
We conclude here as the court did in Wilson v. Automobile Owners Association Insurance Co., supra, when it stated:
"We conclude that all the rights of the parties were determined in the trial court. We also conclude that Wilson by voluntarily accepting the sum awarded her, is estopped by her own conduct from claiming any right to relief by writ of error."
Likewise, plaintiff is estopped by its conduct from claiming any further right to relief by appeal.
Appeal dismissed.
JUDGE ENOCH and JUDGE PIERCE concur.