Appellant Tara Oil Company (Tara) on January 5, 1979 appealed from an order (judgment) of the Corporation Commission (Commission) dated November 8, 1978. That judgment had pooled the leasehold interests in a section of land in Harper County, owned one-fourth by applicant, Kennedy and Mitchell, Inc., (K. & M.), ap-pellee and three-fourths by Tara. We determine Tara has waived its appeal.
Tara professes it did not receive notice of the hearing at which the Commission was to consider the application to pool. It did receive a copy of the pooling order. Tara filed separate applications to vacate and to stay effectiveness of the judgment. Hearing was set and the parties appeared, Tara by counsel. Tara’s attorney sought a continuance, stating the managing officer of Tara desired to be present and present evidence as to Tara’s correct mailing address, a well location he preferred over that suggested by K. & M. and as to value of Tara’s leasehold interest.
Following the hearing on Tara’s motions, the Commission issued a new order on December 22, 1978 denying the motion to vacate judgment and vacating the stay order it had earlier made on Tara’s request.
In its appeal filed January 5, 1979, Tara contends the notice mailed to it by K. & M. of the setting of K. & M.’s application to pool had been sent to a different address (room 1006) in the same building (Russ) in San Francisco, California, than the one (room 642) of that building at which it had its offices and that the first notice it had of any such pooling proceeding was receipt of copy of the pooling order dated November 8, 1978.
In the Commission’s order of December 22, 1978 it extended until December 28, 1978 the time for Tara to elect whether to take the cash bonus and percentage of oil and gas produced or to indicate its choice to *1077 join in paying for expense of drilling and, if applicable, completion of the contemplated well.
K. & M. moved to dismiss Tara’s appeal and has renewed the motion in answer brief. K. & M. contends the appeal should be dismissed because Tara has accepted K. & M.’s check for the cash portion of the bonus ($36,000.00), cashed the check and still retains the proceeds, and that meanwhile K. & M. has been out all the expense of and has proceeded to drill and has completed the contemplated well and placed it on production.
Tara resists the motion to dismiss. When Tara acknowledged to K. & M. by lettér appearing in the record, the receipt of the described check, it added in such letter that “We have accepted this bonus payment subject to determination of the validity of the order on appeal.” Tara asserts that the opinion of this court in the case of
In re Reid’s Estate,
Tara’s reliance on that case is not well founded. In the Reid’s Estate case, this court merely held that the request by the son of the incompetent, Reid, Sr., that the county court advance the hearing on the son’s motion to discharge the guardian so that the son, Reid, Jr., could timely bring a single appeal from the anticipated overruling of his motion to discharge guardian along with the previously entered judgment denying his objections to the guardian’s report was not the acceptance of a benefit of the first judgment and a waiver of the son’s right of appeal. 1
In the case of
Bras v. Gibson,
As concerns the subject of “duress,” we deem the rationale of the case of
Bush v. Aetna,
In the
Bras
case, supra, quoting from earlier decisions, we stated, in effect, that acceptance of the benefits of a part of the judgment favorable to an appellant, constitutes a waiver of his right of appeal as to the other parts of the judgment.
Ingram v. Groves,
We determine our opinion in Bras v. Gibson, supra, is controlling here. Making appropriate substitutions of language including substituting the name of Tara instead of Bras, some of the pertinent language of that case modified to fit this case, would read as follows:
[Tara] needed only to appeal the trial [tribunal’s] actions to protect [its] interest. [Its] act in cashing the [check] was voluntary and for [its] benefit... .
[Tara] did two inconsistent acts. [It] accepted the fruits of the judgment, but *1078 also sought to repudiate the judgment. .. .
We hold [Tara] cannot accept the fruits of the trial [tribunal’s] order that accrue to [it] and at the same time maintain an appeal from all or parts of the [judgment] not to [its] benefit.
Our decision renders the further consideration of other matters suggested or briefed by the parties to this appeal inappropriate.
APPEAL DISMISSED.