Benton v. Benton

Citations

• 122 Cal. 395
• 55 P. 152
• 1898 Cal. LEXIS 596

Syllabus

<p>Action by Wife for Permanent Support—Desertion—Cruel Treatment—Pleading.—A complaint in an action by a wife against her husband for permanent support, without divorce, which sets forth acts of extreme cruelty of the husband, and avers that by reason thereof plaintiff was compelled to depart from the family dwelling-place, and that the cruel treatment was such as to render it impossible for plaintiff to continue to live with him, states facts which constitute desertion under section 93 of the Civil Code, and from which desertion followed as a legal conclusión, and need not specifically aver willful desertion of the plaintiff by the defendant; but sufficiently states a cause of action for permanent support and maintenance of the plaintiff, under section 137 of the Civil Code.</p> <p>Id.—Amount of Allowance—Issuable Fact—Extent of Belief.—In an action for a support without divorce, though the amount of the allowance is largely within the discretion of the court, and it retains subsequent control thereof and may increase or diminish the allowance, yet the amount to be allowed is an issuable fact, and cannot be made in the first instance in excess of the amount asked for in the complaint.</p> <p>Id.—Date of Findings and Judgment—Presumptions—Appeal.—When the findings and judgment were signed and filed of the same date, it will be presumed that the findings were first filed; and, upon appeal from the judgment, it will be sustained upon the presumption either that findings were first filed, or that they were waived.</p>