I dissent from the order denying a rehearing of this case, not because I consider that the propositions discussed in the department opinion are incorrectly decided, but because I think that the plaintiff is estopped by his own acts to ask a reversal of the order appealed from. When that order was made the defendant, at whose instance it was made, became so doubtful of its validity that she deemed it a necessary precaution to take an appeal from the judgment, and that appeal was dismissed by this court, upon motion of the plaintiff on the ground that the judgment having been set aside, there was nothing to appeal from. (Storke v. Storke, 111 Cal. 514.) Having succeeded in depriving her of a hearing upon the merits of her appeal from the judgment on the ground that there was no judgment in existence when her appeal was taken, the plaintiff has now succeeded in obtaining a decision that the order vacating the judgment was void, and in effect that the judgment has all the time been in full force; or, if this is not the meaning of the decision, the plaintiff has at least succeeded in having the judgment restored to life after the defendant’s right of appeal has been taken away upon his suggestion that an appeal from a vacated judgment could not be taken.
*53I am entirely agreed with the court that the order setting aside the decree of divorce was invalid and that it ought to have been reversed, except for the fact that the plaintiff adopted it, and necessarily asserted its validity in moving to dismiss the former appeal. Having taken that position, and having deprived the defendant of her right of appeal, upon the theory that there was no judgment, he should not be allowed now to claim as against her that there is a judgment.
It is but just to counsel for plaintiff to say that in presenting their motion to dismiss the defendant’s appeal, they were perfectly frank with the court. They kept nothing back. Everything connected with the making of the order vacating the decree of divorce was as fully presented then as it is in this record, so that the invalidity of the order was just as apparent then as it is now. And their purpose to have it reversed upon appeal (this appeal) was distinctly avowed. In other words, they told the court plainly that they intended to rely on the order vacating the decree only so long as it was useful to them for the purpose of depriving the defendant of her right of appeal, and, as soon as that purpose was accomplished, they would ask us to annul the order and put the judgment in full force.
The answer the court ought to have made to this proposition is obvious; counsel should have been plainly informed that they would not be allowed to blow hot and cold about the order as.might suit their convenience; that they would be required to take one position or the other, as to its validity, once and for all; that if they asserted .its validity for the purpose of dismissing the defendant’s appeal, they would not afterward be heard to question its validity for the purpose of enforcing their judgment, and that if they asserted or intended to assert its invalidity, or procure its reversal, they should not be allowed to dismiss, as superfluous, an appeal which might be the only means of vindicating the rights of the defendant.
*54That the court did not make this answer to the plaintiff’s motion, does not, however, excuse the plaintiff. He sought the order, and, notwithstanding it ought to have been denied on his own showing, he obtained it and all the advantages flowing from it, and it does not lie in his mouth to say that the court made a mistake in granting his request. Having, by the aid of the court cut off his adversary from her right of appeal, upon the theory that there was nothing to appeal from, he should not be heard to say that this was an erroneous theory, or allowed to take any proceeding in this forum to put in force a judgment against her from which he induced us to say she had no need to appeal.
It is suggested that this reasoning may be turned against the defendant; that she, in appealing from a judgment which upon her motion had been vacated by the trial court, was just as inconsistent as the plaintiff has been, in relying upon the order for one purpose, and then seeking to set it aside after taking advantage of it. But the difference between the two cases is obvious. Defendant took two proceedings to accomplish the same object—i. e., to set aside the judgment, and the most that can be said is that if the first was effective the second was superfluous. She did not, by either step, seek to deprive the plaintiff of any legal remedy for the enforcement of his rights. Doubting the efficiency of one order, she sought another, of the efficiency of which there could be no doubt. Her appeal from the judgment was an avowal of her distrust of the order. The order had not harmed the defendant or induced him to change his position in any respect, or forego any advantage. To justify plaintiff’s change of front on the ground that he is only following in the path where the defendant led the way, is to confound the distinction between the act of a party who takes a perfectly proper proceeding to accomplish a legitimate end, and the party who says to the court, you must not allow this lawful means of redress to my adversary, because she has *55sought redress by another means; and who announces in the same breath his claim, and his intention to enforce it, that the. former proceeding was inefficacious.
If it be said that the judgment on the former appeal (111 Cal. 514), and that on the present appeal are consistent, because when the defendant took her appeal from the judgment no appeal had been taken from the order vacating it, and therefore there was no judgment to appeal from, I say that this proposition is answered by all the reasoning of the court in Pierce v. Birkholm, a decision by the court in Bank, reported in 110 Cal. 669.
In that case the plaintiff had obtained an order for a new trial, from which the. defendant had appealed; whereupon the plaintiff appealed from the judgment which, upon his motion, had been vacated by the order granting a new trial. A motion was made by the defendant to dismiss the plaintiff’s appeal from the judgment, upon the ground that when the appeal was taken there was no judgment in existence. But the motion was denied. It is true that this case differs from that in the fact that the appeal from the judgment was taken before the appeal from the vacating order; but that is a wholly immaterial circumstance. A vacating order is just as much in suspense until the time for appeal has elapsed, as it is after a timely appeal has been taken. To hold otherwise would be to make a distinction where there is no difference, and to put it in the power of a party to do just what he was not allowed to do in Pierce v. Birkholm, supra, in every case in which an order granting a new trial is made less than sixty days before the expiration of a year from the judgment.
It may be said that the only effect of this argument, if sound, is to prove that the former decision was wrong, and the present decision correct. This is very true, but it remains equally true that a party who has obtained an advantage over his adversary by an erroneous decision which he has invoked, should not be allowed to escape any of the consequences of that decision in the *56same litigation, with the same adversary, in the same forum, when it is no longer in his power, or that of the court, to restore the right which has been taken away. If the principle of estoppel means anything, this was a case for its application.