The morning call., 1893-09-01
PENDING APPEAL
Florence Blythe to Have
No Allowance.
THE ORDER IS SET ASIDE.
The Supreme Court Declares That
the Evidence Producing 1t Was
insufficient.

The Supreme Court has reversed the
order of Judge Coffey in the Probate Court
granting a family allowance to Florence
Blythe as the heiress Of Thomas IL. Blythe,
deceased.
In support Of the original application
for the allowance counsel introduced in
evidence the findings of fact. conclusions
of law and the decree before made and en-
tered in the action of Blythe VS.. Ayers ct
al, wherein it was found and adjudged that
Florence Blythe was the lawful child and
heir of Thomas H. Blythe. deceased. The
petitioner, Florence Blythe. aside from GER
tain matters pertaining to property, rested
her application upon the foregoing evil
dence.
The appellants thereupon requested the
court to grant continuance for such rea-
sonable time as would enable them to per-
feet an appeal to the Supreme Court from
the judgment in Blythe VS.. Ayers, and
stated that they in good faith intended to
appeal from such judgment and also asked
for continuance Tor the purpose of intro
ducing testimony 10 prove that the petit
TONER was not in fact the child of Thomas
Fl. Blythe nor even member of his fam
lily. These motions were denied by the
court below.
Then the appellants moved the court to
deny the prayer OF Florence Blythe upon
the grounds that no evidence had been in
troduced that she was the child of said
Thomas II. Blythe or a member of his
family, other than the findings, ETC., in the
case of Blythe VS.. Ayers, and that these
findings of fact, conclusions OF law and
decree showed that the petitioner never
was the adopted child of Blythe. This mo-
tion was also denied by Judge Coffey, and
the family allowance ordered. The appel
lants further claimed that the court
abused its discretion in n Tot granting them
a reasonable continuance for the purposes
stated. and also that the court had no jG-
risdiction to make the order of allowance,
because the petitioners status as the child
of Blythe was denied.
The Supreme Court, however. in dealing
with the case yesterday. decided that the
two last-named objections would not hold,
but that the decree must be reversed on
other grounds. 1t must be reversed be-
cause there is no evidence to support it.
Appellants were present at the hear
Ing OF the application, and denied the
allegation of the petition that Florence
Blythe was the child and heir at law of
Blythe. deceased. To prove that fact,
fin dlngs, conclusions of law and decree in
the case Of Blythe vs.. Ayers were intro
duced in evidence. We think them wholly
insufficient to prove it.
The findings and decree in that action
were filed and entered October %, 1890.
The application for an allowance was filed
and heard October 81, 1890. The Judgment
was but nine DAYS old when offered in evil
dence, and under the statute the losing
parties were entitled 10 an appeal from it
at any time within sixty days from its
rendition. By virtue OF section 1049 of the
Code # Civil Procedure an action is pend
ing until the time for appeal has expired,
the 1udpm0nt SOOnnr satisfied.
This Judgment, being but nine days old
at the time OF nearing, and not satisfied,
afforded no evidence of the facts therein
found, for it was not a final judgment, in
asmuch as the action was still pending. a
Judgment IN order TO be admissible in evil
dence for the purpose OF proving facts
therein recited must be final Judgment t
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 VS.. Sherwood, 80 Cal.
473: Although a judgment may be final
with reference to the court which pro-
nounced it, and as such be the ubjeet 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.
"The sound policy of a law which will not
allow decree TO stand upon such evidence
is well illustrated by the Blyths litlgati0n
This judgment, which was introduced in
evidence upon the hearing of the matter of
family allowance, to prove the paternity
of the child, has since been attacked bv
appeal, and the matter is now pending in
this court Let us assume that the 1udg-
ment will be reversed upon the findings
and the cause remanded with directions to
enter Judgment for appellants. By such
assumption the judgment upon which the
decree of family allowance was based has
gone forever.
1T has not only disappeared, but the
evidence OF the paternity of the child
upon which the allowance was granted is
declared by the court of last resort to be
no evidence of such paternity. Ii this
Judgment was evidence of the fact of pa
teTnlty, 1t was conclusive evidence of that
fact; 1t was res adjudlcata.' Yet that cam
not be possible, for nothing is-'res adiudi-
cata' until II has reached final Judgment
Until final judgment is reached the pro
ceedings are subject to change and modl-
fcation. are Imperfect and inchoate, and
can avail nothing as bar or as evidence
until the judgment with its verify as a
record settles finally and conclusvely the
question at issue. Other Justices of the
Supreme Court have gone to even greater
lengths, and have declared such a iudg-
ment inadmissible as evidence for any
purpose.
For the foregoing reasons we conclude
the evidence is wholly insufficient 10 sur
port the decree. Let he decree be re-
versed. GAROUTTE j :"
Justices Mcfarland, De Haven and
Fitzgerald concurred.
This question Of family allowance for
Florence Blythe has been under discus sion
for some considerable time. The first pro-
ceedings taken before the Supreme Court
were under writ of prohibition, wherein
the administrator was restrained from
paying Florence her allowance-S30O a
month from April 4, 1883, to October 81,