By this proceeding the relators seek a writ of prohibition directed to the Honorable J.E. Stone, judge of the superior court for Cowlitz county, restraining and prohibiting further proceedings in the matter hereinafter detailed.
In July, 1936, in a cause then pending on appeal from the joint board of the department of labor and industries, entitled Joe Puliz v. Department of Labor and Industries of the State of Washington, the respondent judge, after a hearing on the merits, made findings of fact and conclusions of law and thereupon entered a judgment dated July 6, 1936, as follows:
"The above entitled matter, having been appealed from the department of labor and industries, and coming on for hearing on the 17th day of June, 1936, the plaintiff appearing in person and by his attorney, W.H. Sibbald, the Department of labor and industries appearing by the attorney general, G.W. Hamilton and J.A. Kavaney, assistant attorney general, at which time the case was tried entirely on the record, no additional evidence having been adduced, the only evidence before the court being the same as that which was before the court on the previous trial and the court having reconsidered said evidence and the argument of counsel, and the court having made findings of fact and arrived at conclusions of law thereon; *Page 147
"NOW, THEREFORE, in accordance with such findings of fact and conclusions, IT IS ORDERED, ADJUDGED AND DECREED that the department of labor and industries pay to the plaintiff a further award of fifteen degrees, being the amount of $450.00 and time loss beginning November 3, 1933, the date of the first operation since the last final closing order, which has not been appealed from, at the rate of $40.00 per month up to and including the 18th day of July, 1934, less such time loss as has been paid during such time and the further sum of $175.00 as attorneys fees and for his costs and disbursements herein."
In due time the plaintiff in that cause gave notice of appeal from that judgment and the whole thereof to this court and, so far as here appears, has perfected that appeal in a timely manner. The department of labor and industries took no appeal from that judgment.
On September 5, 1936, and after his appeal to this court had been perfected, the plaintiff in that cause procured the issuance by the superior court of an order to show cause, directed to the department as judgment debtor, requiring it to show cause, at a time fixed, why the judgment should not be paid forthwith. A motion to quash the show cause order was interposed and granted, but thereupon the trial court treated the application for the order as an application for a writ of execution and ordered execution to issue. A special writ of execution was issued to the sheriff of Thurston county, who apparently made proper demand, but the demand was not complied with and the judgment was not paid. Thereupon the plaintiff (appellant) in the original cause obtained an order from the court directed to the official head of the department of labor and industries requiring him to show cause why he should not be adjudged in contempt of court because of his refusal to comply with the execution *Page 148 and pay the judgment. Upon the service of that order the relators instituted this proceeding.
In his brief on the appeal to this court the appellant assigns error upon the denial to him of a finding of total permanent disability, which finding would carry with it not a lump sum award, as provided for in the judgment appealed from, but a monthly pension, as provided for in Rem. Rev. Stat., § 7679 [P.C. § 3472].
[1] Manifestly, if the injured workman accepts payment of the award for partial permanent disability allowed him by the judgment, his action in so doing would be inconsistent with his claim on appeal for total permanent disability and would necessarily work a dismissal of his appeal because if, by or through the appeal, he succeeds in obtaining an award of total permanent disability and the consequent pension, that award would absolutely annul and supersede the award for partial permanent disability allowed him by the judgment which he now seeks to enforce. The law is well settled in that respect.
"Subject to the exceptions and qualifications hereafter stated, the general rule is that a party who enforces, or otherwise accepts the benefit of, a judgment, order, or decree cannot afterward maintain an appeal or writ of error to review the same or deny the authority which granted it. A party cannot avail himself of that portion of an indivisible judgment, order, or decree which is favorable to him, and secure its fruits, while prosecuting an appeal to reverse in the appellate court such portions as militate against him. Nor can a party appeal from an order after he has obtained the benefit of a subsequent order made at his request and based upon the order from which he attempts to appeal." 3 C.J. 679, § 552.
"It is quite generally conceded that one cannot ordinarily accept or secure a benefit under a judgment or decree and then appeal from it or sue out a writ of error, when the effect of his appeal or writ of error may be to annul the judgment." 2 R.C.L. 61, § 44. *Page 149
"Applying the general principle announced in the preceding paragraph, it is settled that after a party receives payment of a judgment or decree he cannot appeal therefrom or prosecute an appeal theretofore taken." 2 R.C.L. 63, § 45.
See, also, the extensive note following the case of McKain v.Mullen, 65 W. Va. 558, 64 S.E. 829, 29 L.R.A. (N.S.) 1.
This rule, like all good rules, must work both ways. If one may not prosecute an appeal after accepting the fruits of the judgment, then, by the same token, he may not force payment of the judgment while he is prosecuting an appeal therefrom.
[2] There are, of course, well recognized exceptions to the rule, but this case falls within none of them. Had the department complied with the execution and paid the judgment, it would thereupon have been entitled to a dismissal of the appeal, but the judgment has not been paid, the judgment creditor has not yet accepted payment, and it is, perhaps, questionable whether he has yet gone so far that he cannot recede. In any event, we cannot here consider or direct the dismissal of the appeal in the original cause.
In view of the whole situation, as here disclosed, and the pendency of the appeal, we are of the opinion that the writ should issue to maintain the status quo until the appeal is dismissed or is heard and disposed of on the merits by this court.
Let the writ issue.
STEINERT, C.J., BEALS, BLAKE, and ROBINSON, JJ., concur.