¶1(concurring specially). The judgment appealed from (omitting its formal parts) is as follows: “It is ordered and adjudged that the defendant Christian L. Jensen pay to the defendant People’s Telephone & Telegraph Company, a corporation, the sum of $183.33, for the use and benefit of said company, that the plaintiffs’ complaint herein be dismissed, except as to said recover}'- on the part of the plaintiffs from the defendant Jensen; and it is further ordered and adjudged that each party, plaintiffs and defendants, pay one-half of the costs of this action.” As to plaintiffs’ appeal, the record reads thus: “Thereafter and within the time allowed by law, the plaintiffs duly took and perfected an appeal from said judgment, except the portion thereof whereby it is adjudged that the defendant Christian L. Jensen pay to the defendant the People’s Telephone & Telegraph Company, a corporation, the sum of $183.33 f°r the use and benefit of said company by serving and filing a proper notice of appeal and undertaking on appeal duly approved by the judge of said court as to form and sufficiency of sureties.” Thus it appears that the plaintiffs did not appeal from the portion of the judgment which determined the amount of company funds which had been mis-^ appropriated by the defendant Christian E- Jensen, though contending such amount should have been $2,205.33, instead of $183.33, the amount adjudged to he due to the corporation. And it now is contended by respondents, in effect, that plaintiffs acquiesced in and consented to such adjudication by expressly excepting that portion of the judgment in their notice of appeal; that, by reason of such exception, they cannot be heard to question the correctness of such adjudication; and that this court is without authority to reverse or modify the same. I think respondents are right in this contention. Our statute provides as follows: “Upon an appeal from a judgment or order, or upon a writ of error, the Supreme Court may reverse, affirm or modify the judgment or order, and as to any or all of the parties; and may, if necessary, *392or proper, order a new trial; and if the appeal is from a part of the judgment or order, may reverse, affirm or modify as to the part appealed from.” Rev. Code Civ. Proc. § 464.
¶2Appellants concede that the portion of a judgment not appealed from cannot be reversed or modified, but they contend that the sum stated in the judgment in this case represents only one item in the accounting, and that the judgment is not conclusive as to other items claimed to be due the corporation. The contention is not tenable. It rests on a misconception of the legal effect of the judgment. The complaint stated only one cause of action. The object of the action was to compel the restoration to the corporation of certain sums alleged to have been misappropriated by defendant Christian L. Jensen. The principal issue was the amount of such misappropriations, if any. As means to effect the object of the action plaintiffs demanded an accounting, the issuing of a restraining order, and the appointment of a receiver. By its judgment the trial court determined (1) that the amount to be restored to the corporation was $183.33; (2) that a restraining order should not issue; (3) that a receiver should not be appointed; and (4) that the costs and disbursements should be divided. It was adjudged by the part of the judgment not appealed from that no sum in excess of the amount named had been misappropriated. Neither party having appealed from such adjudication, it must stand as the law of this case. It is as conclusive against the plaintiffs’ claim that a greater sum should be restored as it is against the defendants that the amount named is due the corporation. The amount to be restored being so small, there was no abuse of discretion in refusing h> issue a restraining order, nor any abuse of discretion in refusing to appoint a receiver. In view of the conclusion reached by the trial court regarding the amount of recovery, it did not err in dividing the costs and disbursements.
¶3Therefore, adhering to the views expressed in the former decision of this court, upon the issues then considered, I concur in the conclusion that the judgment of the circuit court should be affirmed.