(concurring in part and dissenting in part) — The majority dismiss this appeal for the reason that the October 31st judgment shows on its face that the trial court lacked jurisdiction to enter it, in that the ground relied upon by the trial court for vacating the judgment of January 11, 1956, is not a statutory ground; hence, the January 11th judgment was never legally vacated and the subsequent judgment is void. I do not agree with the majority that the appeal should be dismissed, for the following reasons:
(1) The trial court vacated the January 11th judgment for the reason that adequate notice of its entry had not been given, and that such failure “was due to an excusable neglect.”
Excusable neglect is a statutory ground for relieving an aggrieved party from the effects of a judgment. RCW 4.32-.240 [cf. Rem. Rev. Stat, § 303] provides in part:
“The court may . . . upon such terms as may be just, . . . and upon payment of costs, relieve a party, or his legal representatives, from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.” (Italics mine.)
The right to relieve a party of a judgment includes the right to set it aside or vacate it. Leavitt v. De Young, 43 Wn. (2d) 701, 263 P. (2d) 592 (1953).
It is conceded that the trial court found as a fact that excusable neglect was established. Since the judgment was vacated upon a statutory ground, the order vacating the judgment is not void on its face.
(2) This appeal is from the judgment of the court entered October 31st. It is this judgment that the majority hold is void. When an appeal is dismissed, the judgment appealed from remains in full force and effect as though no appeal was ever instituted. Brady v. Onffroy, 37 Wash. 482, *87079 Pac. 1004 (1905). It follows then that, by dismissing this appeal, the alleged void judgment is the judgment which must be paid, if the clerk’s judgment roll is to be satisfied.
In the instant case, the trial court found that
“. . . the failure of the defendants timely to move against said Judgment or appeal therefrom was due to an excusable neglect, now, therefore, it is hereby
“Ordered, Adjudged and Decreed that the Judgments heretofore entered . . . are hereby vacated . . . ” (Italics mine.)
In Leavitt v. De Young, supra, in which a judgment was vacated because of inadvertence, surprise or excusable neglect, we said [p. 706]:
“An order granting a motion to vacate such judgment will not be disturbed by this court unless there was a manifest abuse of discretion. [Citing cases.] . . .
“. . . From our examination of the record pertaining to this matter, we cannot say that the court abused its discretion in so finding and in ordering the default judgment vacated.”
Since discretion of the trial court is involved in vacating a judgment, that issue must be determined by this court on its merits. By the majority’s dismissal of this appeal, the discretion of the trial court has not been reviewed. If it is determined, after review, that the trial court erred, the appeal should not be dismissed, but the judgment should be reversed, with instructions to the trial court to reinstate the judgment of January 11th.
(3) The trial court, in applying RCW 4.32.240, supra, allowed to the respondents, as just terms for the vacation of the judgment the sum of $34.80. This sum was paid by the appellants and accepted by the respondents, constituting a ratification and approval of the order of the court. The respondents are now estopped to impugn the validity of the order. It is a well-settled rule that
“A person who accepts the benefits of a judgment, decree, or judicial order is estopped to deny the validity thereof, whether the invalidity results from want of jurisdiction of the person or of the subject matter of the suit.” 31 C. J. S. 357, § 110.
*871Accord, Livesay Industries v. Livesay Window Co., 202 F. (2d) 378 (1953); Wilson v. Union Electric Light & Power Co., 59 F. (2d) 580 (1932); Braden v. Lewis, 119 Cal. App. (2d) 84, 259 P. (2d) 16 (1953); Multa Trina Ditch Co. v. Stobaugh, 76 Colo. 451, 231 Pac. 48 (1925).
For the reasons stated, I conclude that the dismissal of this appeal is improper, and that this court should determine the appeal on its merits, in which event the judgment should be affirmed.