Bergin v. Hinckley

HARRISON, J. The appellant, Florence Blythe Hinckley, then Florence Blythe, on the 19th of January, 1892, executed to the plaintiff two instruments in writing by which she promised to pay to him the moneys therein named within one year after the determination of her right and title to the estate of Thomas H. Blythe, deceased, in the legal proceedings then pending for the determination of the same in the superior court of the city and county of San Francisco. This action was brought by the plaintiff upon these obligations April 16, 1896, the complaint alleging that there had been a final determination of said legal proceedings more than one year prior thereto, and that they had not been paid. In their answer the defendants alleged that the determination of said legal proceedings did not become final until less than a year prior to the commencement of the action, and defended upon this ground. The court found that the allegations in the complaint were true and rendered judgment in favor of the plaintiff. The defendants moved for a new trial, and, their motion having been denied, they have appealed therefrom and also from the judgment.

[168]The appeal is urged upon the ground that the evidence was insufficient to justify the decision of the court.

The legal proceeding referred to in the instruments was an action entitled Blythe v. Ayres, instituted under section 1664 of the Code of Civil Procedure, for the purpose of determining the heirship to Thomas H. Blythe. In that proceeding the superior court had rendered its judgment October .33, 1890, to the effect that the appellant, Florence, was the sole heir of Thomas, and the only person entitled to a distribution of his estate. Appeals had been taken from this judgment and were pending in the supreme court at the date of the instruments, and, with the exception of the appeal of Adam Blythe et al., hereinafter referred to, were determined by an affirmance of the judgment appealed from, prior to June 18, 1894. On that day Florence filed a petition in the superior court for a distribution to her of all of the estate of Thomas H. Blythe, with the exception of certain moneys in the hands of the administrator, averring therein the rendition of the judgment, and that appeals had been taken therefrom, and that the said appeals had all been heard, and the judgment appealed from affirmed; and on October 36, 1894, a decree of distribution of the estate, in accordance with her petition, was made to her.

December 33, 1890, Adam Blythe et al. had appealed from the judgment in Blythe v. Ayres by filing and serving a notice of appeal, and filing an undertaking on appeal in the sum of three hundred dollars. No further steps were taken by them in the prosecution of their appeal, and a motion to dismiss their appeal was made in the supreme court June 3, 1895, and was granted on the following day. December 37, 1894, Henry T. Blythe et al., defendants in the case of Blythe v. Ayres, moved the superior court to dismiss the proceedings upon the ground that more than six months had expired since the decision, and that the judgment had not been entered in the judgment-book. This motion was denied September 37, 1894, and an appeal therefrom was taken October 17th, and the order affirmed November 30, 1895. Certain appeals were also taken from the decree of distribution, and this decree was affirmed by the supreme court November 30, 1895.