Opinion
Page __
__ Cal.App.2d __ 229 P.2d 387 REITANO v. YANKWICH et al. Civ. 18441. California Court of Appeals, Second District, Second Division April 11, 1951.Subsequent opinion 237 P.2d 6.
Aaron Sapiro and Edwin M. Rosendahl, Los Angeles, for plaintiff-appellant.
David Mellinkoff, Beverly Hills, for petitioner Yankwich.
MOORE, Presiding Justice.
Plaintiff having sued the defendants for libel, he was denied recovery and was assessed for costs in the sum of $112.50. That sum was paid and a satisfaction of the judgment was filed.
Respondent Yankwich now seeks a dismissal of the appeal on the ground that his judgment has been satisfied and cites in support of such contention Hurt v. Bauer, 37 Cal.App. 109, 173 P. 601, and Brochier v. Brochier, 17 Cal.2d 822, 825, 112 P.2d 602. Neither authority is persuasive. The Brochier decision involved a situation that was not even remotely similar to the case at bar. A dismissal of an appeal was not involved. In Hurt v. Bauer an appeal was dismissed because 'by the payment of the judgment the questions presented on the appeal have become moot.' No facts are given in the opinion, no authority is cited and the case has not been followed. It is the established rule that the voluntary payment of a judgment does not deprive the judgment debtor of his right to appeal unless the payment has been made by way of compromise [229 P.2d 388] or with an agreement not to take or prosecute an appeal. Hartke v. Abbott, 106 Cal.App. 388, 391, 289 P. 206.
The motion to dismiss the appeal is denied.
McCOMB and WILSON, JJ., concur.