In re Estate of Blythe

Garoutte, J. This appeal is prosecuted from an order granting a family allowance to Florence Blythe. Upon the hearing of the petition for the allowance counsel for the applicant introduced in evidence the findings of fact, conclusions of law, and the decree heretofore made and entered in the action of Blythe v. Ayers, wherein it is found and adjudged that Florence Blythe is the lawful child and heir of Thomas H. Blythe, deceased. The petitioner, aside from certain matters pertaining to property, rested her .application upon the foregoing evidence. Appellants thereupon requested the court to grant a continuance for such reasonable time as would enable them to perfect an appeal to the supreme court from the judgment in Blythe v. Ayers, and stated that they intended in good faith to appeal from such judgment, and also asked for a continuance for the purpose of introducing testimony to prove that the petitioner was not, in fact, the child of said Thomas H. Blythe, deceased, or a member of his family. These motions being denied, appellants then moved the court to deny the prayer of said petitioner upon the grounds that no evidence had been introduced that she was the child of said Thomas H. Blythe, deceased, or a member of his family, other than the findings, etc. (to which reference has already been made), and that said findings of fact, conclusions of law and decree, show' that petitioner never was the adopted child of Blythe, the deceased. This motion was denied and the family allowance ordered.

We do not find it necessary to consider the claims of counsel that the court abused its discretion in not granting appellants a reasonable continuance for the purposes stated, as the decree must be reversed upon other grounds. ‘ Neither do we deem the contention of appellants sound wherein it is insisted that the court had no jurisdiction to make the order of allowance, because the petitioner’s status as the child of Blythe was denied. That was a question of fact for the court to determine before denying or granting the application and in no sense jurisdictional.

The decree must be reversed because there is no evidence to support it. Appellants were present at the hearing, of the application, and denied the allegation of the petition that Florence Blythe was the child and heir-at-law of Blythe, de[475]ceased. To prove that fact findings, conclusions of law and decree in the case of Blythe v. Ayers were introduced in evidence. We think them wholly insufficient to prove it. The findings and decree in that action were filed and entered October 22, 1890. The application for an allowance was filed and heard October 31, 1890. The judgment was but nine days old when offered in evidence, and under the statute the losing parties were entitled to an appeal from it at any time within sixty days from its rendition,- By virtue of section 1049 of the Code of Civil Procedure, an action is pending until the time for appeal has expired, or the judgment sooner satisfied. This judgment, being but nine days old at the date of the hearing, and not satisfied, afforded no evidence of the facts therein found, for it was not a final judgment inasmuch as the action was still pending. A judgment, in order to be admissible in evidence for the purpose of proving facts therein recited, must be a final judgment in the cause, and if the action in which the judgment is rendered is still pending, necessarily the judgment is not final. As was said in Hills v. Sherwood, 33 Cal. 478; “ Although a judgment may be final with reference to the court which pronounced it, and as such be the subject of appeal, yet it is not necessarily final with reference to the property or rights affected so long as it is subject to appeal and liable to be reversed.”