new contract for the parties who executed it. The bond was executed in view of the fact that the contractors were about to commence the erection of a house for plaintiff in accordance with the written contract mentioned in the bond, and the sole purpose of the bond was to protect the plaintiff against the consequences of a failure of the contractors to pay the personal obligations which they might incur for labor and mate rials, in the event that they actually constructed for him the building referred to in the contract; and it is the duty of the court to enforce it according to its terms. The case of Lumber Co. v. Neal, 90 Cal. 213, 27 Pac. Rep. 192, cited by appellant, does sustain his contention; but, upon a more careful consideration of the question therein decided, we are not satisfied with the conclusion reached in that case. Judgment and order affirmed.

In re BLYTHE'S ESTATE. (No. 14,837.) (Supreme Court of California. Aug. 31, 1893.)

RES JUDICATA-PENDING RIGHT TO APPEAL.

Since, under Code Civil Proc. § 1049, by which an action is pending until the time for appeal has expired, or the judgment has been sooner satisfied, a judgment until then is not final, an unsatisfied decree, the time for an appeal from which has not expired, is no evidence of the facts thereby adjudged.

In bank. Appeal from superior court, city and county of San Francisco; J. V. Coffey,, Judge.

Petition, in the matter of the estate of Thomas H. Blythe, deceased, for a family allowance to Florence Blythe. Appeal from an order granting the same. Reversed.

H. S. Brown, John R. Jarboe,, W. S. Goodfellow, and Edward R. Taylor, for appellants. W. H. H. Hart, Garber, Boalt & Bishop, Thos. I. Bergin, and W. W. Foote, for respondent.

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 et al., 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, deceased. 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 60 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." 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 possible, for nothing is res adjudicata until it has reached final judgment. As was said in Webb v. Buckelew, 82 N. Y. 560: "It is therefore only a final judgment upon the merits which prevents further contest upon the same issue, and becomes evidence in another action, between the same parties or their privies. Until final judgment is reached, the proceedings are subject to change and modification, are imperfect and inchoate, and can avail nothing as a bar or as evidence, until the judgment, with its verity as a record, settles finally and conclusively the question at issue." And, again: "Whenever it fails to fix and determine the ultimate rights of the parties, wherever it leaves room for a final decision yet to be made, it is not admissible in another action, for the plain reason that it has finally decided and settled nothing. Until the judgment comes, no man can know what the ultiImate decision will be." In Harris v. Barnhart, (Cal.; decision filed March 18, 1893,) 32 Pac. Rep. 589, 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, (Cal.; decision filed July 21, 1893,) 33 Pac. Rep. 757, 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 evi

dence 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 1019, Code Civil Proc., 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.

We concur: MCFARLAND, J.; FITZGERALD, J.; DE HAVEN, J.

(99 Cal. 511)

VON SCHMIDT v. WIDBER, Treasurer. (No. 15,160.)

(Supreme Court of California. Sept. 11, 1893.) COURTS-PRACTICE-ORDERS.

1. Under the present constitution, whenever a judge of the superior court is present at the place designated for the transaction of judicial business, and there assumes to transact such business, his acts are the acts of the "court;" and therefore an order dispensing with an undertaking on an appeal, made and signed by a judge of the superior court of San Francisco county while holding a session of one of the departments of the court at its court room, is a sufficient compliance with Code Civil Proc. § 946, providing that the "court" below may dispense with an undertaking on appeal in certain cases.

2. Since there is no provision requiring orders of the superior court to be entered at length on its minutes, it is sufficient if an order dispensing with an undertaking on appeal be filed with the clerk.

Department 1. Appeal from superior court, city and county of San Francisco; A. A. Sanderson, Judge.

Action by one Von Schmidt against one Widber, treasurer of the city and county of San Francisco. There was a judgment for plaintiff, and defendant appealed. Respondent moves to dismiss. Denied.

Harry T. Creswell, for appellant. Tilden & Tilden, for respondent.

HARRISON, J. Motion to dismiss the appeal. The appellant was sued in his official capacity, as treasurer of the city and county of San Francisco, and has appealed from the judgment against him. Section 946, Code Civil Proc., provides that the court below may, in its discretion, dispense with an undertaking on appeal "when the appellant is an executor, administrator, trustee, or other person acting in another's right;" and in Scheerer v. Edgar, 67 Cal. 377, 7 Pac. Rep. 760, it was held that this section applied to an action against a municipal officer in his official capacity. On the 19th of July, 1892, after the defendant had given his notice of appeal, the Honorable James M. Troutt, one of the judges of said superior court, and the presiding judge thereof, while holding a session of one of the departments

of the court at its court room, and engaged in the trial of a cause then pending in said department, upon the motion of the attorney for the defendant, made and signed an order dispensing with any undertaking upon said appeal, which he returned to said attorney, and it was on the same day filed with the clerk, but no record thereof was ever made in the minutes of the court. The respond ent now moves to dismiss the appeal for the want of an undertaking, upon the ground that an order dispensing with an undertaking on appeal can be made only by the court, whereas the foregoing order was made by a judge, and not by the court.

A court is a tribunal presided over by one or more judges, for the exercise of such judicial power as has been conferred upon it by law. Blackstone, following Coke, defines it as "a place where justice is judicially administered," (3 Bl. Comm. 23;) but it is also essential that this place be designated by law, and that the person or persons who are authorized to administer justice be at that place for the purpose of administering justice at such times as may be also designated by law. The times fixed by law for the transaction of judicial business are called "terms," and the periods between the end of one term and the beginning of the next are called "vacations." These "terms" vary in different jurisdictions according to the statutes by which they are fixed; in some states ending at fixed dates, and in others continuing until the commencement of a succeeding term. Formerly, in England, there were four terms of court in each year, and their duration was so fixed that there were only 91 days in each year during which the courts could be in session. As the judicial business increased, it became impossible to transact it all within these periods of time, and there grew up the practice of hearing many matters "out of court" with the same effect as if heard while the court was in session; but the matters which were thus heard were only such as pertained to causes pending in court, and which were of a nature to expedite or facilitate the judicial disposition of the pending cause, to which they were merely subsidiary or collateral. At a later day the practice arose of hearing and disposing of such matters at certain hours during "term time" while the court was not in formal session, and subsequently certain hours of each day were fixed, at which one of the judges would hear these matters while the court was actually in session. The motions and orders thus made were said to be heard and disposed of "at chambers," for the reason that they were heard by the judge at his chambers, rather than in the court room, but the term "chambers" finally became extended so as to include any place, either in or out of the court room, at which a judge may hear applications or make orders while the court is not in session, in matters pending in that

court. The distinction between those matters which could be heard in court and those which could be heard at chambers arose from convenience, rather than from any other cause, but they were limited to the subsidiary and incidental steps in practice and procedure, leaving to the court the judicial determination of the issues presented by the pleadings, and which formed a part of the record. The term "court," as used in the Code of Civil Procedure, means sometimes the place where the court is held, sometimes the tribunal itself, and sometimes the individual presiding over the tribunal, and in many cases is used synonymously, as well as interchangeably, with "judge;" and whether the act is to be performed by the one or the other is generally to be determined by the character of the act, rather than by such designation. Section 166 provides that a judge "may, at chambers, grant all orders and writs which are usually granted in the first instance upon an ex parte application;" and section 1004 provides that orders made out of court may be made by the judge of the court in any part of the state. Prior to the adoption of the present constitution there were fixed terms in this state for the transaction of judicial business by the several district courts, and any act done by a court after its term had ended was void. Bates v. Gage, 40 Cal. 183. Upon the adoption of the present constitution, all terms of court were abolished, and by its provisions (article 6, § 5) the superior courts are always open, and (section 6) in San Francisco there may be as many sessions of said court at the same time as there are judges thereof; and "the judgments, orders and proceedings of any session of the superior court, held by any one or more of the judges of said courts respectively, shall be equally effectual as if all the judges of said respective courts presided at such session." Under the present constitution of this state, therefore, whenever a judge of the superior court is present at the place designated for the transaction of judicial business, and there assumes to transact such business, his acts may be considered as the acts of the court of which he is a judge.

There is no provision, either in the constitution or by statute, which requires the presence of any other officer than the judge to constitute a court, or to authorize the transaction of judicial business, nor is there any provision of law which requires all the orders of a court to be entered at length in its minutes in order that they may be effective; and by section 1003, Code Civil Proc., every direction of a court or judge is an order, whether it be merely made in writing or entered in the minutes. If it is not entered it should, however, be filed, in order that it may form a part of the records in the case. The county clerk is ex officio the clerk of the superior court of his county, and his

duties are fixed by statute, and are defined in section 111 of the county government act, (St 1891, p. 322.) This statute, however, is intended to define his duties as a political officer of the state, rather than to prescribe or limit the functions or judicial powers of the court. He is not, however, by this act, required to do more than to "enter a synopsis of all orders, judgments and decrees proper to be entered, unless the court shall order them to be entered at length." By section 1052, Code Civil Proc., he is required to keep a register of actions in which he must enter the title of the action, "with brief notes under it from time to time of all papers filed and proceedings had therein." He is also required to make in the minutes of the court an entry of certain acts and transactions had or done in the presence of the court by the parties to an action, such as their oral consent to a waiver of a trial by jury, (section 631,) or of findings of fact, (section 634,) or their agreement to a reference, (section 638;) and, in case of receiving a verdict upon the trial of a cause by a jury, he is to make an entry of the time of trial, the names of the jurors and witnesses, and to set out the verdict at length, (section 628.) These, however, are matters which form a proper connection between the pleadings and the judgment, and, as they are a digression in the progress of a trial from the general course of procedure designated for obtaining a judgment upon the issues presented by the pleadings, the legislature has deemed it proper that they should be evidenced by a permanent memorandum thereof. But these entries in the minutes are evidently intended for the guidance of the court in its further action in the cause, and cease to be of value upon the entry of the judgment, for they form no part of the judgment roll, or "record" of the judicial action of the court, (section 670,) and cannot be used to impeach that record. With the exception of orders in matters of probate, (section 1704,) there is no provision in the Code of Civil Procedure which requires the clerk to enter in his minutes any order of the court made during the trial of the cause, or at any time after issue and before judgment. The final action of the court upon the issue made by the pleadings, and which is a judicial determination of that issue, is to be recorded by the clerk in the judgment book. Section 668. It is essential, however, that the action of the court be made a matter of record, in order that there may be no uncertainty as to what its action has been, and for this purpose it is customary, as well as expedient, to have its acts entered in the minutes kept by the clerk; but if the order is formally prepared and signed by the judge, and made a matter of record by filing with the clerk, the same end is attained as if it were spread at length upon the minutes of its daily transactions. As was said in Niles v. Edwards, 95 Cal. 47, 30 Pac. Rep. 134: "The action of the court

does not depend upon the entry of its orders by the clerk, but upon the fact that the orders have been made; and, whenever it is shown that an order has been made by the court, it is as effective as if it had been entered of record by the clerk." We hold, therefore, that, as the order in question was made by a judge, who at the time was at the place designated for holding court, and in the exercise of his judicial functions as a court, it was a sufficient compliance with the provisions of section 946, and the motion to dismiss the appeal is therefore denied.

We concur: MCFARLAND, J.; PATERSON, J.

(4 Cal. Unrep. 205) PALMTAG v. ROADHOUSE et al. (No. 15,018.) (Supreme Court of California. Aug. 31, 1893.) STATUTE OF LIMITATIONS ESTOPPEL TO PLEAD

DEMURRER.

1. The fact that a mortgagor was the general attorney of the mortgagee in other matters does not make the position of the mortgagor a fiduciary one, or render it anything but adverse to the mortgagor's interest, as far as the mortgage is concerned, so as to estop him to set up the statute of limitations to an action of foreclosure.

2. Under the California practice, when all the facts that defendant would be required to prove to sustain his plea of the statute of limitations appear on the face of the complaint, defendant may take advantage thereof by de murrer; but, to uphold a demurrer, the complaint must show, not that the cause of action may be barred, but that it is barred.

Commissioners' decision. Department 2. Appeal from superior court, Monterey county.

Action by Frederika Palmtag against George W. Roadhouse and Emma Roadhouse, his wife, to foreclose a mortgage. From a judgment for defendants, plaintiff appeals. Reversed.

James Hall and Cross & Hall, for appellant. S. F. Geil and John J. Wyatt, for respondents.

SEARLS, C. This is an action brought to foreclose a mortgage given by the defendants, George W. Roadhouse and wife, to secure a promissory note for $1,550 and interest, made by said defendants, Roadhouse and wife. The note and mortgage were dated March 25, 1885, and the note was payable to Frederika Palmtag, or order, one year after date. The action was commenced July 9, 1890,-as may be seen, more than four years after the maturity of the note. Defendants demurred to the complaint upon the ground, among others, that the cause of action was barred by the provisions of section 337 of the Code of Civil Procedure of the state of California. Plaintiff, in her complaint, and with an evident view to avoid the apparent bar of the statute of four years, inserted in her complaint the following statement: "That said defendant George W. Roadhouse is an attorney and counselor at