Vaughan v. Wilson , 203 Or. 243 ( 1955 )

LUSK, J.

Plaintiffs sued defendants to obtain a decree of cancellation of a logging contract, and in addition sought damages for injury to their fences and livestock alleged to have been caused by the defendants’ logging operations. The court entered a decree denying the relief of cancellation, ordering the clerk to deliver to the plaintiffs the sum of $54,928.49, theretofore deposited in court by defendants for the benefit of the plaintiffs, and granting plaintiffs a judgment for $200.00 for injury to their fences and livestock. The sum of $54,928.49 was due the plaintiffs for logs purchased from them by the defendants. On the day after entry of the decree plaintiffs accepted payment from the clerk of the two sums mentioned.

Thereafter plaintiffs appealed from the decree and “from each and every part thereof”. Defendants move to dismiss the appeal on the ground that plaintiffs have waived their right to appeal by accepting the benefits of the decree.

It is the settled rule that an election to proceed on the judgment and enjoy its fruits is a renunciation of the right to appeal from the judgment. Pacific General Contractors v. Slate Construction Co., 196 Or 608, 611, 251 P2d 454, and cases cited. But this rule has no application to a judgment to which the plaintiff is entitled in any event. Thus, where the defendant admits that the plaintiff is entitled to a judgment for a certain sum of money and judgment is entered for that amount the plaintiff may accept it without prejudicing his right to appeal and obtaining an adjudication as to Ms claim to other and additional relief. Hodgson v. Martin, 90 Or 105, 107, 166 P 929, 175 P 671; Brawand v. Home Installment Co., 75 Or 478, 480, 147 P 391; Stemmer v. Insurance Company, 33 Or 65, 85, 49 P 588, 53 P 498; Portland Construction Co. v. O’Neil, 24 Or 54, 56, 32 P 764. The plaintiffs therefore did not waive their right of appeal by accepting payment of $54,928.49, for concededly they were entitled to that money in any event.

This is not true, however, of the judgment for $200.00 damages. Enforcement of tMs part of the decree precludes the plaintiffs from appealing from it. The question remains whether the waiver extends to the entire decree. We think that it does not for the reason that the provisions of the decree are severable. Plaintiffs’ right to recover damages for injury to their fences and livestock was in no way dependent upon their right to have the contract canceled, or their right to the money owing them for logs purchased by the defendants. The decree, in so far as it denied the remedy of cancellation, could be reversed without reversing the entire decree. In these circumstances we are of the opinion that the acceptance of the benefits of that part of the decree which was favorable to them did not operate as a waiver of the right to appeal from the remainder.

A similar question was decided in Goepel v. Kurtz Action Co., 216 NY 343, 110 NE 769. There the plaintiff in a first cause of action sued for $1,043.05 and interest due and owing for goods sold and delivered and unpaid for under an agreement between the parties, and also for loss of profits alleged to have been caused by breach of the agreement; and, in a second cause of action, for the balance due on other goods sold amounting to $1,344.46 and interest. On the trial the court withdrew from the jury the plaintiff’s claim for loss of profits and the jury returned a verdict for the plaintiff in the sum of $2,790.33. Judgment was entered accordingly, and in such judgment it was separately “adjudged that the complaint as to the first cause of action be and the same hereby is dismissed, as to the loss of profits claimed”. Plaintiff appealed from the judgment “and from each and every part thereof.” Plaintiff thereafter compelled payment and collected the amount of the judgment. Defendant moved to dismiss the appeal on the same ground that is urged in support of the motion now under consideration. The Court of Appeals of New York in an opinion by Pound, J., held that the rule in question should not be applied to a judgment containing separate provisions which are not connected and dependent, and that in such a case the enforcement of the portion of the judgment favorable to the appealing party should not be deemed a waiver of the right to appeal from the unfavorable portion. The court concluded as follows:

“The right to proceed on the money judgment and enjoy its fruits is entirely consistent with the right of appeal from the dismissal of the complaint as to what is in substance a separate cause of action. The notice of appeal included, not only the judgment as a whole, but each and every part thereof. As the money judgment was collected after appeal, the plaintiff’s appeal as to that part of the judgment should have been dismissed, but as to that part only.”

The distinction between a decree containing severable provisions and a decree in which a reversal of a particular portion would necessitate reversal of the whole was recognized by this court in Inverarity v. Stowell, 10 Or 261. The case, however, is not precisely in point because the notice of appeal was directed only to the particular provision, of the decree which the appealing party had not enforced.

Anthony Y. Yturri and George H. Brewster argued the cause for Bespondents. On the brief were George H. Brewster, Bedmond, and Yturri & O’Kief, Ontario. Boy Kilpatrick, Canyon City, argued the cause for Appellants. With him on the brief were Bobert D. Lytle and W. F. Schroeder, Vale.

We think that the decision in Goepel v. Kurtz Action Co. correctly determines the rule applicable to this case, and, therefore, hold that the plaintiffs’ appeal should be dismissed only as to that part of the decree which awards them judgment for $200.00. As to the remainder of the decree the motion to dismiss is denied.