Department of Labor & Industries v. Stone

While in his appeal (No. 26448) Joe Puliz insists that he is permanently disabled and therefore entitled to a pension, and also seeks recovery of time loss compensation for the period from July 18, 1934, to the date of the judgment, it should be borne in mind that he was awarded by the trial court time loss to July 18, 1934, and that the department did not appeal from that judgment. In other words, the department concedes that the claimant is entitled to time loss compensation to July 18, 1934. So far as that award is concerned, we may not diminish same.

In the absence of a bond superseding the judgment — in view of Rem. Rev. Stat., § 7697 [P.C. § 3488], the judgment in the case at bar cannot be superseded; the claimant may enforce payment. To the amount awarded by the trial court, time loss compensation to July 18, 1934, the claimant is entitled absolutely. The reversal of the judgment cannot impair his right to that amount. If the department had tendered to him that sum, and he had accepted it, such acceptance would not be inconsistent with his attempt to reverse the judgment on the grounds constituting the basis of his appeal. Those two grounds, it will be remembered, are that he is entitled to time loss compensation from July 18, 1934, to the date of the judgment, and that he is permanently disabled, therefore, as a pensionable status.

I note the quotation in the majority opinion from 3 C.J. 679, § 552. The remainder of that section reads as follows:

"The rule does not apply, unless appellant has accepted a substantial benefit; nor does it apply where the parts of the judgment or decree are separate and independent, and the receipt of a benefit from one part is not inconsistent with an appeal from another, or where the right to the benefit received isconceded by the opposite party or appellant is entitled theretoin any event, so that it could not be denied if the portions of the judgment or decree granting it should be reversed, or in other cases in which the acceptance of the benefit or partial enforcement of the judgment is not inconsistent with an appeal and reversal. ``The acceptance of benefits must be voluntary, in the sense that the party is not required by the decree to do the act relied upon as a release of errors.'

"Reservation of right. As a rule a party cannot reserve the right of appeal while accepting payment or otherwise taking a benefit under the judgment; but this rule does not prevent his entering into an agreement by which, with a view of saving expenses, the parties come together as far as they can agree, but reserve the right to contest the points upon which they cannot agree."

"The rule that a party cannot maintain an appeal or writ of error to reverse a judgment or decree after he has acceptedpayment of the same in whole or in part has no application, as a rule, where appellant is shown to be so absolutely entitled tothe sum collected or accepted that reversal of the judgment or decree will not affect his right to it, as in the case of the collection of an admitted or uncontroverted part of his demand, and in other like cases, for, ``in cases of this character, there can be no injustice, or vexatious oppression to the defendant, in allowing the plaintiff to receive that to which he is unquestionably entitled, and to confine future litigation only to so much of plaintiff's claim as may be bona fide disputed.'" 3 C.J. 682, § 556. (Italics mine.)

Volume 2, R.C.L. 63, § 45, in restating the general rule enunciated in 2 R.C.L. 61, § 44, that, after a party receives payment of a judgment or a decree, he cannot appeal therefrom or prosecute an appeal theretofore taken, stresses the application of the rule to a situation where the party coerces payment by execution. It is well, however, to quote 2 R.C.L. 61, § 44, as follows, which clearly shows that Puliz, the appellant in cause No. 26448, is outside the rule invoked by the majority:

"It is quite generally conceded that one cannot ordinarily accept or secure a benefit under a judgment or decree and then appeal from it or sue out a writ of error, when the effect of his appeal or writ of error may be to annul the judgment. Thus the defendant in a suit by which his tax deed is set aside cannot unreservedly accept the taxes, interest, and charges tendered by the bill and ordered by the decree to be paid him, and then appeal from the decree, since his acceptance is a positively implied waiver of his right of appeal, nor will an offer to return the money, made long after its acceptance, avail to prevent the dismissal of an appeal in such case. Also compelling the surrender of the parcel awarded the plaintiff in an action of ejectment and payment of taxed costs, by threat of executing the writ of restitution which had been issued, prevents him from attempting to reverse the judgment on appeal although he was denied relief as to a large parcel of land upon which he claimed that the defendant had wrongfully encroached. The rule as to the waiver of the right of review by accepting benefits under the judgment or decree has been applied in many kinds of actions, including both real and personal actions, and in some jurisdictions it has been embodied in the statutes. The rule just stated is subject to the exception, that where the reversal of a judgment cannot possibly affect an appellant's right to the benefit secured under a judgment, then an appeal may be taken, and will be sustained, despite the fact that the appellant has sought and secured such benefit. A good illustration of this doctrine is the case of an action to recover one thousand dollars, in which the only defense is a counterclaim for five hundred dollars. It is obvious that five hundred dollars of the plaintiff's claim is admitted. If the defendant succeeds in establishing his counterclaim, thus reducing the plaintiff's recovery to five hundred dollars, the plaintiff may collect the five hundred dollars awarded to him by the judgment, and still appeal from such judgment to secure a reversal, to the end that he may defeat the counterclaim and recover judgment for his entire demand on a new trial. The five hundred dollars he is entitled to absolutely. The reversal of the judgment and the second trial of the case cannot impair his right to it. Accepting this sum is, therefore, not inconsistent with his attempt to reverse the judgment, that he may on a new trial recover more. He can never recover less. It is the possibility that his appeal may lead to a result showing that he was not entitled to what he has received under the judgment appealed from, that defeats his right to appeal. Where there is no such possibility, the right to appeal is unimpaired by the acceptance of benefits under the judgment appealed from. So, also, in the case of an order discontinuing an action over the objection of the defendant instead of dismissing it, the acceptance of the costs taxed on the discontinuance, when they were such that he would have been entitled to them whether the judgment was one of discontinuance or dismissal, does not operate to waive the defendant's right of appeal from the judgment of discontinuance. This branch of, or exception to, the general rule that a party who has taken advantage of a decree may not afterwards question its validity has also been applied in the case of a decree consisting of two separate, distinct, and unrelated parts, the disposition of either of which can in no wise affect the decision as to the other. If it is possible for the appellant to obtain a more favorable judgment in the appellate court without the risk of a less favorable judgment from a new trial of the whole case there or in the lower court, then the acceptance of what the judgment gives him is not inconsistent with an appeal for the sole purpose of securing, without retrial of the whole case, a decision more advantageous to him."

The reversal of the judgment cannot possibly affect appellant Puliz's right to the award of time loss compensation to July 18, 1934. Therefore, he may compel payment of, and also prosecute an appeal from, that judgment on the two grounds above stated.

"The general rule, enacted into statute in at least one jurisdiction, is that a litigant who has, voluntarily and with knowledge of all the material facts, accepted the benefits of an order, decree, or judgment of a court, cannot afterwards take or prosecute an appeal or error proceeding to reverse it. Although some courts have intimated that there might be a distinction between judgments at law and decrees in equity, on the ground that a judgment at law is an entirety and cannot be reversed in part, while this is not true of a decree in equity, it seems that no distinction is generally made. The reason for this rule is that a party cannot proceed to enforce and have the benefit of such portions of a judgment as are in his favor, and appeal from those against him, — in other words, that the right to proceed on a judgment and enjoy its fruits and the right to appeal therefrom are totally inconsistent positions, and the election to pursue one course must be deemed an abandonment of the other.

"A mere tender of the benefits of a judgment, which is refused, does not operate as an estoppel.

"The general rule stated in the preceding section is subject to an exception which has been recognized and allowed in specific instances and a great variety of cases, enough, perhaps, to give rise to a new rule that where the reversal of a judgment cannot possibly affect an appellant's right to the benefit secured under a judgment, then an appeal may be taken, and will be sustained, despite the fact that the appellant has sought and secured such benefit. Thus, it is possible for the appellant to obtain a more favorable judgment in the appellate court without the risk of a less favorable judgment from a new trial of the whole case there or in the lower court, then the acceptance of what the judgment gives him is not inconsistent with an appeal for the sole purpose of securing, without retrial of the whole case, a decision more advantageous to him. And in some jurisdictions it is provided by statute that when a party recovers judgment for only part of his demand, the enforcement of such judgment shall not prevent him from prosecuting an appeal therefrom as to so much of the demand or property sued for as he did not recover.

"Another exception to the general rule has also been applied in the case of a decree consisting of two separate, distinct, and unrelated parts, the disposition of either of which can in no wise affect the decision as to the other. So, also, in the case of an order discontinuing an action over the objection of the defendant instead of dismissing it, the acceptance of the costs taxed on the discontinuance, when they were such that he would have been entitled to them whether the judgment was one of discontinuance or dismissal, does not operate to waive the defendant's right of appeal from the judgment of discontinuance.

"In accordance with the general principles announced in the preceding sections, it is settled in most, though not all, jurisdictions that after a party receives payment of a judgment or decree he cannot appeal therefrom or prosecute an appeal theretofore taken. This is especially true where the party coerces payment by execution. Likewise, a plaintiff who accepts money deposited in court, for the purpose of satisfying the judgment which he has recovered, is precluded from taking and prosecuting an appeal from such judgment. Where, however, a judgment or decree was rendered in favor of the plaintiff for only the uncontroverted part of his claim, it has been held that his acceptance of payment did not preclude him from appealing to determine whether he should not have been allowed more." 2 American Jurisprudence, §§ 214, 215, 216, pp. 975 to 979.

The writ should be denied.

MAIN, HOLCOMB, and GERAGHTY, JJ., concur with MILLARD, J.