213 P.2d 176 | Or. | 1950
This is an appeal from an order granting a new trial as to the defendant, H. C. Gregory, the appellant herein. Plaintiffs, who were co-partners engaged in the automobile business, commenced an action against both defendants to recover damages for breach of a contract arising out of the sale of an automobile. The cause was submitted to the jury and a verdict returned in favor of both defendants. Based on this verdict, the court on June 3, 1948, entered a judgment dismissing plaintiffs’ complaint and assessing costs and disbursements against the plaintiffs in favor of both defendants. On the following day the plaintiffs moved for a new trial for the reason that there was no evidence to support the judgment in favor of the defendant Gregory. On June 6, 1948, plaintiffs paid in full the judgment for costs and disbursements in favor of the defendant Gregory, and on the following day satisfaction of such judgment was entered on the Lien Docket. On the 28th day of July, 1948, the court granted the motion for a new trial as to the defendant Gregory.
Appellant has cited the early case of Moore v. Floyd, 4 Or. 260. In that case Floyd paid in full the amount of the judgment and costs and disbursements rendered against him, and the satisfaction thereof was duly noted by Moore. It was held that Moore waived his right to appeal when he accepted the full amount of the judgment, including costs and disbursements. We see no analogy between that case and the one at bar. In the instant case the judgment is not a “dead record.”
It is conceded that if execution had been issued to satisfy the judgment for costs and disbursements, the plaintiffs would not thereby have lost their right of a new trial. Heider v. Unicume, 142 Or. 410, 14 P. (2d) 456, 20 P. (2d) 384. We see no difference in principle
“ * * * it must be deemed too well settled by authority to require further discussion, that a party against whom a judgment has been rendered is not prevented from appealing to this court by the fact that he has paid the judgment, unless such payment was by way of compromise, or with an agreement not to take or pursue an appeal.”
The order setting aside the judgment and allowing a new trial as to the defendant Gregory is affirmed. Plaintiffs are entitled to costs and disbursements.