222 P.2d 863 | Cal. Ct. App. | 1923
This action is one for divorce. The defendant filed a cross-complaint and the court denied each party a decree. In the judgment it was ordered that the plaintiff pay the defendant two hundred dollars as counsel fees in the action, and the appeal is from this order.
Prior to trial the defendant moved the court for an order under section 137 of the Civil Code that she be allowed her counsel fees. It was then stipulated by the parties that decision upon such motion be made at the time of the trial. In the judgment no finding appears as to the property of either party. The finding and order of the trial court upon this issue is as follows: "Wherefore, it is ordered, adjudged and decreed that plaintiff pay to the defendant the sum of two hundred dollars as and for counsel fees in said action; said sum to be paid in five monthly payments, the first payment to be made during the month of April, 1921."
Appellant insists that section 137 of the Civil Code does not authorize the allowance of counsel fees to the wife unless it be established and found that without financial assistance *780 from her husband she would be unable from her own property to defend the action.
[1] It is a familiar rule that a judgment will not be reversed because of a defective finding, or even for want of a finding, if the evidence is such that the trial court must have made one of such a character as to support the judgment. (Hulen
v. Stuart,
[2] It is suggested by appellant that as the respondent was actually able to conduct her case without the payment of counsel fees ultimately ordered, this in itself establishes the fact that such an order was unnecessary. The motion for the allowance was made in due time to have been heard before the trial of the case on its merits. The fact that *781
the hearing and decision upon the motion did not take place prior to the trial does not remove it from the court's jurisdiction as provided in section 137 of the Civil Code. (Farrar v. Farrar,
The judgment is affirmed.
Finlayson, P. J., and Works, J., concurred.