Stearns v. Strom

*394 GIVENS, Chief Justice. Respondent brought suit against appellant on a money judgment for damages foe alienation of affections previously obtained in South Dakota by respondent’s intestate against appellant. At the conclusion of respondent’s presentation of evidence at the trial of the case, appellant moved for a nonsuit because the purported authenticated certificate of respondent’s appointment as Special Administrator did not comply with Section 15-366, I.C.A., in that it was not shown that the Letters of Administration had not been revoked. In other words, there was a total lack of showing that respondent was qualified at the time to institute and prosecute this action. At the same time respondent moved for a continuance, ostensibly indicating he was willing to submit to the imposition of terms as a condition precedent. The record does not disclose the motion for continuance was disposed of otherwise than by the ruling that the motion for nonsuit would be ■“granted without prejudice.” The ensuing judgment likewise provided “that the above entitled action be dismissed without prejudice.” Section 7-705, I.C.A., provides a dismissal by the court upon motion of the defendant, when the plaintiff fails to prove a sufficient case to entitle him to a judgment, is a bar to another action upon the same cause of action. Appellant has appealed from only that portion of the judgment dismissing the action “without prejudice.” An appeal may be taken from a portion of a judgment under Section 11-202, I.C.A., if the judgment is separable. Blaine County Investment Company v. Mays, 52 Idaho 381 at page 385, 15 P.2d 734, wherein the court cited with approval 8 Bancroft’s Code Practice, Section 6267, page 8325, which thus states the general doctrine, page 8326: “The rule, however, is subject to the limitation that 'the part of a judgment from which an appeal is taken must be separable from the remainder, or, in other words, the part whereby the appellant is aggrieved must be so far distant and independent that it may be adjudicated on appeal without bringing up for review the entire judgment or order. Unless the part of the judgment appealed from is separate and distinct from the other issues with which the judgment deals, there is an objection in limine in that the statute directs the appellate court to affirm, modify or reverse the judgment of the trial court, or to order a new trial, and this provision cannot be obeyed while a portion of the case remains in the trial court; in such case, therefore, an appeal from part of the judgment will be dismissed. This rule is also based on the *395 principle that one may not accept a benefit under the judgment, and appeal from another part which is unfavorable to him. Where, however, the benefit is one to which the party is absolutely entitled, he may accept it and appeal from the portion of the judgment adverse to him.” This limitation is well recognized. Cottier v. Sullivan, 47 Wyo. 72, 31 P.2d 675 at page 677; Wills v. Morris, 100 Mont. 504, 50 P.2d 858 at page 860; State v. Todd, 117 Mont. 80, 158 P.2d 299 at page 300; In re Kesl’s Estate, 117 Mont. 377, 161 P.2d 641 at page 643; F. E. Warren Mercantile Co. v. Myers, 48 Wyo. 232, 45 P.2d 5; Cronin v. Gager-Crawford Co., 128 Conn. 401, 23 A.2d 149; 4 C.J.S., Appeal and Error, page 204, § 109. Conceding the judgment as entered was erroneous as attempting to grant a nonsuit without prejudice, it is not separable, as it is apparent the court did not intend to grant a nonsuit as an absolute bar. We cannot give effect to the judgment as entered because erroneous, and cannot give effect to either portion without doing violence to the other. The two portions of this judgment, therefore, are so interdependent that the entire judgment is nullified and rendered nugatory. New Cache La Poudre Irr. Co. v. Water Supply & S. Co., 29 Colo. 469, 68 P. 781; Fuqua v. Watson, 172 Okl. 624, 46 P.2d 486; People v. Roath, 64 Cal.App.2d 835, 144 P.2d 648; Robinson v. Puls, 28 Cal.2d 664, 171 P.2d 430. The judgment is therefore reversed, and the cause remanded for further appropriate action. Costs awarded to appellant. HOLDEN and HYATT, JJ., concur.