Reitano v. Yankwich
Decision Date | 02 November 1951 |
Citation | 38 Cal.2d 1,39 A.L.R.2d 191,237 P.2d 6 |
Court | California Supreme Court |
Parties | , 39 A.L.R.2d 191 REITANO v. YANKWICH et al. L. A. 21881. |
Aaron Sapiro and Edwin M. Rosendahl, Los Angeles, for appellant.
David Mellinkoff, Beverly Hills, for respondents.
Plaintiff and appellant commenced an action for libel and slander against two defendants. A judgment of dismissal, that plaintiff take nothing and pay costs and counsel fees was rendered as to defendant Yankwich following the sustaining of demurrers. Thereafter, a similar judgment was rendered as to defendant Cheleden. After entry of the first judgment, Yankwich's counsel wrote to plaintiff's counsel demanding payment of the costs and attorney's fees or otherwise he would be 'forced' to levy execution. Plaintiff's attorney replied by letter enclosing the amount of the costs and attorney's fees, and stating that he understood it would cover the costs. Yankwich's counsel received the payment and filed a satisfaction of judgment.
Plaintiff appeals from both judgments. Yankwich moves to dismiss the appeal as to him on the ground that a satisfied judgment will not be reviewed on appeal.
It has been generally stated that the voluntary satisfaction of a judgment forecloses the right to have it reviewed on appeal. The problem has been discussed as involving a moot question, the lack of the existence of a controversy, inconsistency of position and that a satisfaction of judgment puts an end to the case. In many of the cases where the statement has been made the rule being applied is: Schubert v. Reich, 36 Cal.2d 298, 299, 223 P.2d 242, 243. See Stein v. Simpson, 37 Cal.2d 79, 230 P.2d 816; In re Baby, 87 Cal. 200, 25 P. 405; People ex rel. Dunn v. Burns, 78 Cal. 645, 21 P. 540; In re Estate of Shaver, 131 Cal. 219, 63 P. 340; Patterson v. Keeny, 165 Cal. 465, 132 P. 1043; Warner Bros. Co. v. Freud, 131 Cal. 639, 63 P. 1017; Preluzsky v. Pacific Co-operative Cafeteria Co., 195 Cal. 290, 232 P. 970; Mt. Shasta Power Corp. v. Dennis, 66 Cal.App. 186, 225 P. 877; Union Lithograph Co. v. Bacon, 179 Cal. 53, 175 P. 464; Graham v. Alchian, 51 Cal.App. 263, 197 P. 134; Morton v. Superior Court, 65 Cal. 496, 4 P. 489.
A distinction has been made, however, between an appellant receiving the fruits of a judgment and one paying a judgment. Hartke v. Abbott, 106 Cal.App. 388, 289 P. 206; Patterson v. Keeney, supra, 165 Cal. 465, 132 P. 1043; Union Lithograph Co. v. Bacon, supra, 179 Cal. 53, 175 P. 464; Warner Bros. Co. v. Freud, supra, 131 Cal. 639, 63 P. 1017.
Thus when there has been a payment of the judgment by the appellant, he does not lose his right to appeal if it is compulsory, such as under execution or other coercion. Hallett v. Slaughter, 22 Cal.2d 552, 140 P.2d 3; Alamitos Land Co. v. Shell Oil Co., 217 Cal. 213, 17 P.2d 998; Buckeye Refining Co. v. Kelly, 163 Cal. 8, 124 P. 536; Kenney v. Parks, 120 Cal. 22, 52 P. 40; Knight v. Marks, 183 Cal. 354, 191 P. 531; Sunset Lumber Co. v. Bachelder, 167 Cal. 512, 140 P. 35; Patterson v. Keeney, supra, 165 Cal. 465, 132 P. 1043; Vermont Marble Co. v. Black, 123 Cal. 21, 55 P. 599; Yndart v. Den, 125 Cal. 85, 57 P. 761; Warner Bros. Co. v. Freud, supra, 131 Cal. 639, 63 P. 1017; Preluzsky v. Pacific Cooperative Cafeteria Co., supra, 195 Cal. 290, 232 P. 970; Hartke v. Abbott, supra, 106 Cal.App. 388, 289 P. 206; Burgess v. California Mut. Building & Loan Ass'n, 210 Cal. 180, 290 P. 1029; Levin v. Saroff, 54 Cal.App. 285, 201 P. 961; Everts v. Matteson, 46 Cal.App.2d 14, 115 P.2d 207.
Where the payment is voluntary this court has recently stated the rule: In re Estate of Merrill, 29 Cal.2d 520, 524, 175 P.2d 819, 822. That rule has support in other cases. Metcalf v. Drew, 75 Cal.App.2d 711, 171 P.2d 488; Hartke v. Abbott, supra, 106 Cal.App. 388, 289 P. 206; Warner Bros. Co. v. Freud, supra, 131 Cal. 639, 63 P. 1017; Patterson v. Keeney, supra, 165 Cal. 465, 132 P. 1043. Moreover, it has been said: Freeman on Judgments, § 1165, p. 2410. That statement was quoted with approval in Warner Bros. Co. v. Freud, supra, 131 Cal. 639, 63 P. 1017. See also, 2 Am.Jur., Appeal & Error, § 221; 29 L.R.A., N.S., 22; 4 C.J.S. Appeal and Error, § 214b.
There have been contrary statements. Hurt v. Bauer, 37 Cal.App. 109, 173 P. 601; Morneault v. National Surety Co., 37 Cal.App. 285, 174 P. 81; Churchill v. More, 7 Cal.App. 767, 96 P. 108, dictum; People's Home Savings Bank v. Sadler, 1 Cal.App. 189, 81 P. 1029, dictum; Everts v. Matteson, supra, 46 Cal.App.2d 14, 115 P.2d 207, dictum. The contrary statements in the last cited cases are out of harmony with the authorities cited above and must be considered as disapproved.
In the foregoing authorities, section 1049 of the Code of Civil Procedure was invoked, 1 but it was held not to foreclose the right of appeal where the payment of the judgment by appellant was compulsory, Kenney v. Parks, supra, 120 Cal. 22, 52 P. 40; Preluzsky v. Pacific Co-operative Cafeteria Co., supra, 195 Cal. 290, 232 P. 970; Metcalf v. Drew, supra, 75 Cal.App.2d 711, 171 P.2d 488; Vermont Marble Co. v. Black, supra, 123 Cal. 21, 55 P. 599; Yndart v. Den, surpa, 125 Cal. 85, 57 P. 761, and the same has been held where the payment was voluntary. Warner Bros. Co. v. Freud, supra, 131 Cal. 639, 63 P. 1017; Hartke v. Abbott, supra, 106 Cal.App. 388, 289 P. 206. It may be said that there has been no satisfaction under section 1049 in the sense that it was intended that the litigation was to be at an end-the right of appeal waived. Brochier v. Brochier, 17 Cal.2d...
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