4. Husband and wife, § 255*—matters which may be determined in suit for separate maintenance. Where a court of equity finds sufficient evidence to warrant a decree of separate maintenance, it retains jurisdiction to grant complete relief between the parties, such as to establish, as between complainant and defendant, the ownership of a fund on deposit in a bank.5. Appeal and error, § 1211*—when variance not available to intervenor on appeal. In a separate maintenance proceeding complainant claimed that a fund on deposit in a certain bank was in fact her separate property, the bill alleging in one place that the fund w^s the property of both complainant and defendant, but in other places it repeatedly referred to it as her individual property. A receiver was appointed, and upon a default being opened, defendant filed an answer denying the allegations of the bill and alleging title to the fund to be in defendant, to which complainant filed a replication. After the filing of the answer a judgment creditor of the defendant filed a petition in intervention averring that complainant had no interest in the fund and that it should be subjected to the payment of his judgment. Upon hearing the evidence the court sustained complainant’s demurrer to the intervening petition and dismissed same for want of equity, entering a decree finding that the fund in question was the individual property of complainant, from which defendant did not appeal. It was held on appeal by the intervenor, that it is only where a decree interferes with his interest in a fund that an intervenor has a right to have an issue formed, and in the present case that issue had been heard and determined; that the intervenor could not complain that no formal answer was filed to his petition by either the receiver or the complainant, since the issues having been formed and the parties having proceeded to trial thereon, and the court having heard the evidence presented by both sides and by the petitioner, such proceeding could continue only upon the theory that the hearing was upon answer ore tenus, or that the intervenor waived the formality of an answer, and that, therefore upon the issues formed upon the petition in intervention the question of a variance between the allegations and the prayer in the original bill and the testimony was immaterial, and in any event the benefit of such a variance could be claimed only by the defendant and was not available to the intervenor.6. Husband and wife, § 264*—when finding as to wife’s ownership of insurance money sustained by the evidence. In a suit for separate maintenance where the evidence tended to show that insurance money recovered by the husband covered the wife’s furniture, wearing apparel and jewelry, held that the trial court was justified in decreeing that a portion of such money on deposit in a bank was her property.
