18 Cal. App. 2d 275 | Cal. Ct. App. | 1936
This is an appeal by plaintiff from a judgment denying his prayer for a divorce and granting to defendant on her cross-complaint a decree of separate maintenance at the rate of $30 per month and further ordering payment by plaintiff to defendant of the sum of $150 attorney’s fees. The alleged ground of divorce was extreme cruelty of the defendant towards plaintiff, while the former in her cross-complaint urged the same ground, augmented later during the trial, through the medium of an amended cross-complaint, to include the additional grounds of desertion and failure to provide.
It is urged in support of the claim for reversal that certain findings are not supported by the evidence and that the court erred in certain rulings in the matter of the admission and exclusion of evidence. Appellant also asserts as further grounds for reversal that the court erred in awarding any maintenance to defendant under the facts of this case, and that the court was in error in permitting the defendant and cross-complainant to file an amended cross-complaint at the close of the evidence.
As to the question of the sufficiency of the evidence to sustain the findings, we are bound by the well-established rule that the decision of the trial court upon issues of fact is conclusive upon us in so far as there is any substantial evidence tending fairly to support such decision, even though we might think that a different conclusion should have been arrived at. It is suggested, however, that an analysis of the testimony offered by respondent, as shown by the record, makes it appear that some of such evidence, and particularly certain of respondent’s testimony and testimony given in corroboration of her evidence,, was false. If we assume this claim as to what the record shows to be well founded, it still remains that the rule relied on by appellant is one solely
The trial court did not err in overruling plaintiff’s objections to certain questions propounded to defendant and witnesses in her behalf. Appellant’s principal complaint in this regard seems to be that the questions were too restricted in their form, but this defect, if such existed, could have been cured by appellant in his cross-interrogatories to and cross-examination of such witnesses; and the record indicates that as to some of these questions the subject-matter thereof was amplified on cross-examination.
Appellant’s claim that respondent is guilty of laches and should be estopped from setting up the conduct of appellant occurring some ten years or more prior to the filing of the action is without merit, in view of the letters written by appellant to respondent concerning their marital status as late as 1930.
Appellant’s next ground for reversal is that the trial court was in error when it permitted the filing of an amended cross-complaint after the evidence was closed, which amended
There is no other point made in the briefs of counsel for appellant that requires notice here.
The attempted appeal from the order by which appellant’s motion for new trial was denied is dismissed, since there is no appeal authorized from that order on facts such as these. The judgment appealed from is affirmed.
York, Acting P. J., and Doran, J., concurred.