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District Court of Appeal, Second District, Division 1, California.

Matter of the ESTATE of Joseph C. POISL, Deceased. Thomas W. HUGHES, Petitioner and Appellant, v. Emma POISL, Contestant and Respondent, Clara Gottman, Helen Kern, John Werner and Charles Werner, Legatees and Respondents.*

Civ. 21991.

Decided: November 21, 1956

Alfred L. Bartlett and Thomas W. Hughes, Los Angeles, for appellant. Ben M. Kochman, Los Angeles, for respondent Emma Poisl.

This is a motion to dismiss an appeal on the ground that prior to filing his notice of appeal the appellant received and accepted $1,000, in full payment of the judgment appealed from and that by reason of his acceptance of the benefits of that judgment appellant is barred from prosecuting his appeal.

Appellant, who is the attorney for the executor of the estate of Joseph C. Poisl, deceased, filed a petition wherein he sought from the estate extraordinary fees in the sum of $10,500. Objections to the allowance of any extraordinary fees were filed by Emma Poisl, the surviving spouse, and following a hearing thereon the court decreed that petitioner was entitled to $1,000, extraordinary fees. The appeal in question is from that judgment.

Appellant's petition for extraordinary fees was for services rendered in connection with a proceeding brought by decedent's widow, Emma Poisl, under section 70 of the Probate Code. The trial court found that appellant associated himself with and represented the legatees and devisees other than the widow as attorney in the trial of the issues in an effort to defeat the claim of the surviving widow that the will was revoked as to her under section 70 of the Probate Code; that appellant also performed legal services in the appeal of the judgment of the trial court; that after the parties have been brought before the court it is no part of the duties of an executor or his attorney to actively participate in the trial of the issues in such a proceeding; that appellant did render extraordinary attorney's services in that he brought the necessary parties before the court in compliance with the citation issued, and that the reasonable value of such services was $1,000. Judgment was rendered against the estate for $1,000, which sum the executor paid to appellant.

As stated in Mathys v. Turner, 46 Cal.2d 364, 294 P.2d 947, ‘It is the general rule that the voluntary acceptance of the benefit of a judgment or order is a bar to the prosecution of an appeal, since the right to accept the fruits of the judgment and the right to appeal therefrom are wholly inconsistent, and an election to take one is a renunciation of the other. [Citing cases.] An exception to the general rule exists where the appellant is concededly entitled to the benefits which are accepted and a reversal will not affect the right to those benefits. [Citing cases.]’

Appellant contends that his appeal is directed only to that portion of the judgment which has denied him the full amount of the fees for which he petitioned and that therefore his acceptance of the benefits of the judgment does not preclude him from prosecuting this appeal. He asserts that since respondent Emma Poisl has not appealed from the judgment the determination of this appeal could not affect the award made to him and that therefore he comes within the foregoing exception. The same argument was advanced by the appellant in Mathys v. Turner, supra, and in holding such contention to be without merit the court said, 46 Cal.2d at page 365, 294 P.2d at page 948: ‘Plaintiff asserts that he comes within this exception and argues that defendant by failing to appeal has agreed that plaintiff is entitled to the amount of $1,500 awarded by the judgment, and hence the sole question presented by the appeal is whether plaintiff is entitled to a greater recovery. The controversy, however, concerned the value of services and the amount of payments made, and in case of a reversal and retrial the judgment could conceivably be smaller. [Citing cases.] As stated in Preluzsky v. Pacific Co-op. Cafeteria Co., 195 Cal. 290, 293, 232 P. 970, 971, ‘if a party to a judgment accepts payment or satisfaction of a part thereof which is favorable to him, and that part is of such a character that the part adverse to him cannot be reversed without affecting the part which is in his favor and requiring the reversal of that part also, the party so accepting the fruits of a part of the judgment in his favor is estopped from prosecuting an appeal from those parts which are against him.’'

It is true that ‘[w]here the different portions of a judgment are severable, a party by voluntarily accepting the fruits of one portion thereof does not necessarily estop himself to attack other and severable portions thereof upon appeal.’ Preluzsky v. Pacific Co-operative C. Co., 195 Cal. 290, 293, 232 P. 970, 971. However, ‘[w]here the judgment represents the complete award allowed to the prevailing party by the court and disposes of the whole issue, or in other words, where the provisions of a judgment are interdependent, the appellate tribunal cannot properly reverse the judgment as to the part complained of and permit the remainder to stand. * * * It is where a party accepts the benefit of an award and appeals for more relief in kind that he must seek a reopening of the whole issue or be precluded by the amount awarded. * * *’ People v. Roath, 62 Cal.App.2d 241, 244–245, 144 P.2d 648, 649.

The sole issue presented in appellant's petition for extraordinary fees was whether he rendered extraordinary services to the estate for which he should be compensated. The court found that he did render extraordinary services the reasonable value of which was $1,000, for which amount appellant was given a judgment. He has appealed from the entire judgment and the judgment not being severable, his acceptance of the benefits thereof is a bar to the prosecution of his appeal.

The appeal is dismissed.

FOURT, Justice.

WHITE, P. J., and DORAN, J., concur.

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