Farmers Elevator Co. of Sterling v. First Nat. Bank of Fleming

• Decision Date: 16 April 1973
• Docket Number: No. C--240,C--240
• Citation: 508 P.2d 1261,181 Colo. 231
• Parties: FARMERS ELEVATOR COMPANY OF STERLING, a Colorado corporation, Petitioner, v. FIRST NATIONAL BANK OF FLEMING, Colorado, a National Banking corporation, Respondent.
• Court: Colorado Supreme Court

Page 1261

508 P.2d 1261

181 Colo. 231

FARMERS ELEVATOR COMPANY OF STERLING, a Colorado corporation, Petitioner, v. FIRST NATIONAL BANK OF FLEMING, Colorado, a National Banking corporation, Respondent.

No. C--240.

Supreme Court of Colorado, En Banc.

April 16, 1973.

Rehearing Denied April 30, 1973.

Francis A. Benedetti, Wray, for petitioner.

Sandhouse, Sandhouse & Wilson, C. H. Sandhouse, Sterling, for respondent.

PRINGLE, Chief Justice.

Petitioner, Farmer's Elevator Company of Sterling, plaintiff below, brought suit against respondent, First National Bank of Fleming, claiming that the bank, as pledgee of certain security, failed to account to petitioner for certain funds held in an account in respondent's bank (Civil Action No. 11296, District Court of Logan County). After trial to the court, with conflicting evidence as to whether petitioner was entitled to any recovery, a judgment was entered in favor of petitioner in the amount of $5959.55. Petitioner 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 the record was filed on the same date.

An execution was subsequently issued out of the district court directed to the Sheriff of Logan County demanding the sum of $5959.55 which petitioner had recovered against respondent. On November 13, 1970, respondent filed a motion for stay of execution alleging that the respondent 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 petitioner for an amount in excess of petitioner's judgment in this action and that the prior judgment was final.

Petitioner then filed a motion requesting the court to determine priorities among its creditors, including the priority of an attorney's lien filed by petitioner'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 of February, A.D., 1971.'

On March 1, 1971, the payment required by the stipulation, being the amount of the judgment, costs, and interests to date of the stipulation, was made by respondent to the Clerk of the District Court. Immediately following receipt of his fees from the Clerk of the District Court, petitioner's attorney filed a Receipt for Payment of Attorney's lien, which attempted to preserve petitioner's right to appeal.

Thereafter respondent filed a motion in the Colorado Court of Appeals entitled 'Motion to Dismiss Appeal or Plea in Bar to Proceedings on Appeal.' This motion was denied without prejudice to the right of respondent to reassert the same in its brief. This was done and the matter was urged in oral argument before the Court of Appeals. The Court, 30 Colo.App. 529, 497 P.2d 352, subsequently dismissed the appeal as moot due to the stipulation entered into by the parties and the action of petitioner's attorney in accepting payment pursuant to this stipulation.

This Court granted certiorari on the sole question: Did the appeal to the Court of Appeals become moot by reason of petitioner's action in accepting benefits pursuant to the stipulation relating to the judgment below?

Petitioner argues that the appeal was not moot on two grounds: (1) the respondent bank made several irrevocable concessions that the amount awarded below was due to petitioner, and thus the amount petitioner received would not be placed in jeopardy pending an unfavorable decision on appeal, and (2) the parties intended that the stipulation would not affect petitioner's right to appeal, and such intent should be controlling.

We hold that petitioner's actions did cause the appeal to become moot. Accordingly, we affirm the judgment of the Court of Appeals.

Initially, petitioner argues that certain actions of respondent amount to incontrovertible concessions that the amount awarded below was due petitioner. Petitioner does not dispute the general rule that a party who accepts an award or legal advantage under a judgment normally waives his right to any review of the adjudication which may again put in issue his right to the benefit which he has accepted. See Wilson v. Automobile Owners Association Insurance Co., 152 Colo. 431, 382 P.2d 815. However, petitioner urges that the alleged concessions of respondent regarding the amount...