On Motion to Dismiss the Appeal.
PRO YO STY, J.Plaintiff and defendant agreed to buy and operate jointly a certain acre of oil-producing land, the interest of plaintiff to be one-fourth and that of defendant three-fourths in the property and its proceeds, each to contribute in the same proportion towards the payment of the price. The title was placed temporarily in the name of defendant, and the management was left in his hands. Plaintiff brought the present suit to be recognized as owner of one-fourth of the land, and for an accounting, and also to recover from defendant for 50,000 barrels of oil which he alleges he loaned to defendant for carrying out'a certain contract entered into by defendant for their joint account.
Plaintiff’s ownership of one-fourth interest was not seriously contested below; but the adjustment of the accounts involved a number of important points upon which the parties differed widely, and a complicated and protracted litigation ensued, in the course of which an enormous record has been piled up.
The court gave judgment in favor of plaintiff for $6,608.14. Defendant filed a motion asking that this judgment be reduced to $1,626.23, or else that a new trial be granted. This reduction was claimed on the ground that, while the court had debited defendant in the account with certain excess royalties that defendant had received, it had not credited him with the return of these excess royalties, or with the money value of the oil transferred in return for these excess royalties. This had been simply an inadvertence on the part of the court, as that point had been made plain on the trial, *479and was no longer disputed. As this error would inevitably have had to be rectified on appeal, the plaintiff consented that it be corrected by the trial court. Plaintiff did this by the following pleading:
“Now comes J. Edward Crusel, and for answer to the rule to correct the judgment herein, otherwise to grant a new trial of this case, says:
“That this defendant does not admit and reserves the right to contest on appeal the basis •upon which the court has stated the accounts between the parties up to January 1, 1907, but, admitting for the purpose of this rule that such basis is correct, the contentions of the defendant as to errors in the statement of the court are true to this extent.”
Plaintiff then appealed from the judgment. Defendant has moved to dismiss the appeal, on the ground that, by thus consenting to the amendment of the judgment in order to avoid a new trial, the plaintiff acquiesced in the judgment.
[1] Far from being an acquiescence, this pleading was expressly the contrary. A litigant cannot reserve a right to appeal while taking a benefit under, or by virtue of, a judgment; but there can be no reason why his consenting to the correction of an error made in his favor should preclude him from seeking relief by appeal as to errors made against him, especially when he has been careful to guard, by an express reservation of his right of appeal, against any supposition of his intending to acquiesce in. the judgment.
Pending the present suit, the land and the oil produced and being produced were sequestered. After the judgment the parties, desiring to stop the expenses of the sequestration, and there being no serious dispute as to the plaintiff’s ownership of one-fourth of the land and the oil, agreed to take the oil out of the hands of the sequestrator appointed by the court, and to divide it between them according to their interest; and this they did. This, too, is urged by defendant and appellee as a ground of acquiescence.
Such it would most unquestionably be in the absence of an agreement to the contrary, but plaintiff was careful to secure an express agreement that his right of appeal should not be prejudiced. While it .is true that by consenting to take a benefit under a judgment a party waives his right of appeal (Flowers v. Hughes, 46 La. Ann. 436, 15 South. 14), there is nothing to prevent litigants from entering into such an arrangement as we have in this case, by which, with a view of saving expenses, the parties come together as far as they can agree, while reserving the right to contest the points upon which they cannot agree. See Michel v. Sheriff, 23 La. Ann. 53; Guenivet v. Perrett, 18 La. Ann. 363.
Appellee contends that, previous to the said agreement by which plaintiff’s right of appeal was expressly reserved, plaintiff made a voluntary, gratuitous waiver of his right of appeal. On this point much evidence has been taken since the remand of the case. That’ evidence shows that at every step plaintiff was solicitous of preserving his right of appeal; it shows that neither he nor his attorneys understood that the right of appeal was at any time being waived or prejudiced. While we are entirely satisfied that the learned counsel for defendant were under the impression that plaintiff had consented to waive his right of appeal, we are equally satisfied that plaintiff never had any intention of doing so, and never did in fact do so. To review the said evidence would serve no useful purpose.
The motion to dismiss the appeal is overruled.
His honor, the CHIEF JUSTICE, dissents.