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1929 OK 518
283 P. 563
140 Okla. 303
Case Number: 20603
Decided: 12/03/1929
Supreme Court of Oklahoma

HARRIS et al.


¶0 Appeal and Error--Waiver of Right of Appeal by Accepting Benefits of Judgment.
A party by accepting the benefits of the part of the judgment favorable to it waives the right of an appeal as to another part of the judgment of which it complains.

Appeal from District Court, Osage County; Jesse J. Worten, judge.

Action by the Pickering Lumber Company against J. W. Harris et al. From the judgment of the trial court vacating the former judgment in its favor, plaintiff appeals. Dismissed.

H. P. White and Baker, Botts, Parker & Garwood, for plaintiff in error.
Redmond S. Cole, for defendants in error.


¶1 This cause is before the court on motion of the defendants in error to dismiss the appeal upon the grounds the plaintiff in error has accepted the benefits of that part of the judgment favorable to it, thereby waiving its right of appeal from that part unfavorable to it.

¶2 This action was instituted in the district court of Osage county by the Pickering Lumber Company, and judgment rendered in its behalf February 1, 1929. On motion of the defendants E. N. Lacy and Mrs. E. N. Lacy, the trial court, on February 18, 1929, vacated and set aside the judgment as to them. So much of the judgment appealed from as is necessary to determine the question now under consideration is as follows:

"It is, therefore, ordered, adjudged and decreed that the motion to vacate judgment be sustained and the judgment heretofore entered in this cause on February 1, 1929, against E. N. Lacy and Mrs. E. N. Lacy, be and the same is vacated and set aside; and it is further ordered and decreed as a part of said judgment, that the defendants E. N. Lacy and Mrs. E. N. Lacy do pay all the costs accrued to date in this action and further that they pay to the clerk of this court the sum of $ 47.58, being the sum due plaintiff on account of the bringing from Kansas City, Mo., to Pawhuska, Okla., of a witness to appear for trial, to which ruling of the court the plaintiff excepts. * * * "

¶3 In compliance with said judgment, the defendants the Lacys paid into court by depositing with the clerk the sum of $ 83.33, $ 35.75 of which was to cover court costs to date of payment and $ 47.58 to cover expenses in bringing witness from Kansas City, Mo., to Pawhuska, Okla., February 1, 1929.