99 Cal. 472 | Cal. | 1893
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
The sound policy of a law which will not allow a decree to stand upon such evidence is well illustrated by the Blythe litigation. 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 by appeal, and the matter is now pending in this court. Let us assume that the judgment 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. It 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. If this judgment was evidence of the fact of paternity, it was conclusive evidence of that fact; it was res adjudicata; yet that cannot be
In Harris v. Barnhart, 97 Cal. 546, it is decided that a judgment cannot be pleaded in bar where it has not been satisfied and the time for appeal has not expired. In other words, the judgment is not a final judgment if the action is still pending and the plea should be in abatement. In Naftzger v. Gregg, 99 Cal. 83, the doctrine is again declared, some of the justices holding that: “ When upon the submission of the case it appeared to the court that a year had not elapsed since the entry of the judgment, and no other evidence upon that issue had been introduced, the court should have held that it did not constitute a bar, for the reason that under the provisions of section 1049 of the Code of Civil Procedure the action was deemed to be still pending.” Other members of the court went to greater lengths and declared the judgment inadmissible as evidence for any purpose.
For the foregoing reasons, we conclude the evidence is wholly • insufficient to support the order.
Let the order be reversed.
McFarland, J., Fitzgerald, J., and De Haven, J., concurred.