In re Estate of Smith

GAROUTTE, J. This appeal is prosecuted from an order of the court settling the final account and ordering distribution of the estate of William F. Smith, deceased. The estate was insolvent. The claim of Andrew Thorne being a preferred claim, upon the settlement of the account it wa,s ordered that the money of the estate be applied to its payment. Lynch, ad[463]ministrator of the estate of Eudora V. Smith, claiming that her estate also held a preferred claim against the estate of William F. Smith, appeals from the order made by the trial court. The only question presented by this appeal arises upon the contention of the administrator of her estate that the claim of that estate is also a preferred claim.

Is the claim presented by this administrator a preferred claim? Section 1643 of the Code of Civil Procedure provides: “The debts of the estate subject to the provisions of section 1305 must be paid in the following order: .... 4. Judgments rendered against the decedent in his lifetime, and mortgages in the order of their date.” Was this claim based upon a judgment rendered against the deceased, William F. Smith, during his lifetime? The facts are these: Eudora Y. Smith, his wife, brought suit against him for permanent support, alleging desertion. An order was made, pendente lite, allowing her alimony to the amount of one hundred dollars per month. At the time Smith died the action had not been tried upon its merits, but alimony had accumulated under this pendente lite order to the amount of about ten thousand dollars. Thereafter Eudora V. Smith died, and a claim against his estate to that amount is based upon these facts. This claim is a preferred claim under section 1643, supra, if this allowance of alimony pendente lite constitutes a judgment rendered against Smith. In Sharon v. Sharon, 67 Cal. 196, the identical question here presented was carefully considered. And in speaking as to a decree awarding alimony pendente lite the court said: “It certainly possesses all the elements of a final judgment. Nothing remained to be done except to enforce it, and for that purpose an execution might issue and be proceeded on, as if the judgment had been rendered in an ordinary action for the recovery of a specific sum of money.” A judgment is defined by the code as a final determination of the rights of the parties in an action or proceeding. The decree in this case is to all legal intents and purposes a judgment, and not only a judgment, but, as to all matters upon which it takes effect, a final judgment. For as to those matters the litigation, as far as the trial court is concerned, has fully and completely ended. If the decree to pay alimony is a final judgment—so final as that