Appeal from an order made after entry of an alternative decree. The cause out of which this action arises was heard and decided on its merits against the appellant on an original appeal. (Cherney v. Johnson, 72 Cal. App. 725 [ 238 Pac. 150 ].) A petition for hearing by this court was denied. The matters and things therein considered are res judicata.

The issues therein adjudicated, so far as they are necessary • to an understanding of the instant appeal, were:

The motion came before the court for hearing pursuant to said notice, and the court found, omitting matters not pertinent to the point involved, as follows:

From the latest judgment this appeal is taken, the rights and obligations of the parties under said contract having been determined by the first judgment from which the appeal was taken.

The only points made on this appeal are that respondents did not make payment of the amount found by the court to be due appellant within the thirty days’ period fixed by the alternative judgment and, further, granting that the appeal stayed all proceedings, the said deposit with the clerk was not made within thirty days after the remittitur was actually received by the clerk. We think there is no substantial merit in these contentions.

The appellant filed no bond upon taking the appeal, yet he received every benefit that would have been conferred by the furnishing of an undertaking on appeal. He did none of the things which the alternative judgment imposed upon him and during the pendency of the appeal he had the use and benefit of $10,000, money of respondents, and also the possession of the real property in suit. Respondents received no benefit whatever from the transaction except legal interest for the use of their money which had passed into appellant’s hands. The parties to the action and the court treated the appeal taken from the alternative judgment as staying proceedings. The inaction of appellant gave color to the mutual belief that the appeal acted as a stay and he made no move that would tend to disturb such belief. The reciprocal duties east upon appellant were greater than those cast upon respondents. The appellant was receiving every benefit that he would have enjoyed had he given an appeal bond. He lost nothing by the delay and he was doubtless anxious that the status quo should be preserved. With this state of facts before us, even though the proceedings were not stayed by operation of sections 942, 943 of the Code of Civil Procedure, the situation is such that appellant should not be allowed to doubly profit by the grace which had been extended to him.

The question as to the coming down of the remittitur was considered and disposed of by the court in its judgment and we are in accord with the disposition therein made.

Judgment affirmed.

Richards, J., Shenk, J., Preston, J., Waste, C. J., Lang-don, J., and Curtis, J., concurred.