clined to dismiss an appeal upon grounds or for defects in procedure that are purely technical, when it is apparent that the appellant has complied with the substantial requirements for perfecting his appeal, and is prosecuting the same with diligence and in good faith. The right of an appeal to this court from the superior court is given by the constitution in all such probate matters as may be provided by law, and statutes making such provision, and regulating the procedure therefor, should be liberally construed.

The other ground stated in the notice of motion for the dismissal of this appeal is, that it was not taken within sixty days after the entry of the order appealed from. The notice of appeal purports in terms to be from an order made and entered in the superior court on the eleventh day of October, 1898, and, as it was shown at the hearing herein that that was the date upon which the order admitting the will to probate was entered at length in the records of the court, the sixty days within which to appeal from the order began to run at that date (Home of Inebriates v. Kaplan, 84 Cal. 486; Estate of Pearsons, 119 Cal. 27.)

Annexed to the affidavit of the moving party herein is a copy of a stipulation filed in the court below, November 21, 1898, between the attorneys for some of the parties to the proceeding therein, including the contestant and the proponents of the will, as follows: "Some confusion having arisen in the above-entitled cause as to the date of the actual entry of the order admitting the will to probate and appointing the executors, which said orders were signed and filed in this court on the twelfth day of September, 1898, for the purpose of settling said date so that the same shall be fixed and certain, it is hereby stipulated for all purposes that the said orders were actually entered as provided by law on the same date the same were filed, to wit, on the twelfth day of September, 1898;" and the respondents urge that, by reason of this stipulation, the appellant is precluded from contending that the appeal was within sixty days after the entry of the order.

The time within which the appellate jurisdiction of this court may be invoked is determined by statute, and not by a stipulation of the parties. The code provides that an appeal may be

taken from an order admitting a will to probate "within sixty days after its entry," and it has been held that their rights in respect to an appeal are determined by the date of its "actual entry." (Coon v. United Order of Honor, 76 Cal. 354.) The action of the superior court does not become definite and certain until it is entered at length in its records. Prior to that time it is in the breast of the judge, and, until it shall be so entered, his decision may be changed from time to time according to his views. It is only when his decision has become the judgment of the court, and thus passed beyond his recall that the appellate jurisdiction of this court may be invoked. (Brady v. Burke, 90 Cal. 1.) If parties could, by their stipulation, bring before this court for review a decision of the superior court before it had been entered in that court, it would be within their power to invoke our action upon moot questions, and we might be called upon to affirm or reverse orders that had never been made, or judgments that had never been entered. It does not appear for what purpose the above stipulation was entered into, the only recital therein being the "confusion" that had arisen as to the date of the actual entry of the order. There does not, however, appear to have been occasion for any confusion, as the date of filing and the date of entry are distinct and separate acts, and performed at different times. In fact, the date of its entry would seem to be as important a part of the record as the entry itself, and as readily ascertained (Code Civ. Proc., sec. 672; see, also, Menzies v. Watson, 105 Cal. 109); but, whatever may have been the cause of the confusion, we hold that the stipulation did not have the effect to deprive the contestant of the right to review the action of the superior court, or to change the time from which his right of appeal should begin to run. There is nothing in the stipulation which, by its terms, purports to express such a purpose, and, in the absence of express terms to that effect, we cannot assume that the parties thereto intended something which they were unauthorized to do. We do not mean to hold that parties may not be bound by an express stipulation when it would be inequitable to disregard it or when by reason thereof, others have been induced to take action which would cause them detriment in case the stipulation were disregarded. There is, however, no room to invoke

this proposition in the present case. There is no element of estoppel which the respondents can invoke against the appellant. They parted with no right by reason of the stipulation, nor did they obtain any right therefor which they are now asked to surrender.

The motion to dismiss the appeal which was taken November 2, 1898, is granted. The motion to dismiss the appeal of December 2, 1898, is denied.

Garoutte, J., and Van Dyke, J., concurred.

[S. F. No. 1173. Department One.-June 6, 1899.] HELEN ELEANOR HUTCHINSON et al., Respondents, v. JOSEPH W. HUTCHINSON, Appellant.

PARENT AND CHILD ABUSE OF PARENTAL AUTHORITY-ACTION BY CHILD FOR FREEDOM AND SUPPORT-CONSTRUCTION OF CODE.-Section 203 of the Civil Code, authorizing an action by a child to be freed from the dominion of a parent, for abuse of parental authority, and to enforce the duty of support and education, is enacted for the benefit and protection of the children; and the first consideration of the trial court in such an action should be the welfare of the children. ID.-ACTION BY DAUGHTERS-SUFFICIENCY OF EVIDENCE-LOSS OF CONTROL BY FATHER-CRUEL TREATMENT.-In an action by twin daughters aged sixteen years, whose mother was dead, to be freed from the dominion of their father, evidence showing that he had lost their confidence and the power to control them as the result of cruel treatment, and that, without any showing that he had some other suitable place for them, he sought to take them against their will from the home of a woman who could control them, and who found them gentle and obedient, and who had received them with his consent from a training home in which he had left them, under a promise by him to pay her a monthly allowance for their support, is sufficient to sustain a finding of abuse of parental authority, and to support a judgment in their favor.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.

The facts are stated in the opinion.

William T. Satterwhite, and O. F. Meldon, for Appellant.

Robert Price, Walter S. Braun, and L. G. Burnett, for Respondents.

GRAY, C.-The respondents are the twin daughters of defendant. Their age at the time of the trial was sixteen years. They base this action against their father upon section 203 of the Civil Code, which provides as follows: "The abuse of parental authority is the subject of judicial cognizance in a civil action brought by the child . . . and when abuse is established the child may be freed from the dominion of the parent, and the duty of support and education enforced." The judgment is that plaintiffs be freed from the parental dominion of their father, and that he pay to their guardian twenty-five dollars a month for their support and education. From this judgment and from an order denying a new trial defendant appeals.

The evidence shows that defendant is a hard-working man, a machinist by trade, and as such earns from sixty to eighty dollars a month; that his wife died some ten years before the trial of this case, and that since her death he has had sole care of plaintiffs until they ran away from home; that his family, of late years, has consisted of these two girls and his son Willie, who was some ten or twelve years of age at the time of the trial; that defendant, by reason of his occupation, was necessarily away from home much of the time. In December, 1895, the father was obliged to leave his home in San Francisco and remain absent from the city for several months. During such absence the daughters drew his wages from his employer and invested much of them in clothes and theater tickets. When the father returned and learned of this he upbraided his daughters, whipped them, and sent them to bed. On the next morning he again whipped them and kicked one of them because they did not have breakfast ready at the usual time. They then decided to run away and hid themselves in the basement of their dwelling, where they stayed three days, after which they went to the Orlando House, and after staying there one night they were arrested by the police and taken to the police station, and from there the father took them home, accused them of having men with them at the Orlando House, which they stoutly denied, struck them with his hand and sent them to bed. A few days after this, in March, 1896, the defendant missed a silver watch and inquired of the daughters concerning it; their answers were unsatisfactory to him, whereupon he charged them with lying

and gave them an unmerciful beating, using therein a cane and a poker. The plaintiff Helen testifies that in the course of this beating the defendant took her by the throat and knocked her on the floor, kicked her on the side, and punched her in the stomach with his fist and left her partially unconscious. The next morning the daughters ran away again and lived for three weeks thereafter under the stairs leading to an empty house on Folsom street, when they were again taken in charge by the police and conveyed to the city prison at the New City Hall. The defendant called on them there and told them he would not take them home again, but would turn them over to the police authorities. Their father now becoming discouraged in his efforts to keep his daughters under control, they were, by his consent, taken to the Hill home, from which place early in June, 1896, they were taken by their guardian ad litem herein, Mrs. Burnett, to her home on Broadway street in San Francisco, their father agreeing to pay her twenty-five dollars a month for their support. From that time down to the commencement of this action, some four months later, the children remained with Mrs. Burnett, to whom they have become much attached, and she desired them to remain with her. She testified that the children are mild mannered and gentle and seem to be much in fear of their father. The father and daughters have been on friendly terms and have gone walking together and have corresponded, and he has visited them since they have been with Mrs. Burnett, but it appears he finally concluded that Mrs. Burnett was trying, in his own language, "to rule over" him in the matter of what the children should wear, and he threatened and intended to take the children away from her against the will of all concerned except himself. There is also evidence tending to show that a short time prior to the children running away the defendant had thrown a tea-cup at one of them and had struck one of them with a hammer, and at another time had thrown a frying-pan at one of them, that he frequently whipped them with a leather strap about eighteen inches long, an inch wide, slitted at the ends, and denominated a "cat-o'nine-tails." It also appears from defendant's testimony that this strap had been a cherished instrument of punishment in the family from the infancy of defendant's oldest child, now