51 P. 859 | Cal. | 1898
The principal objection urged by appellant, that section 176 of the Civil Code does not contemplate or warrant the character of relief sought in the action and awarded by the judgment below, was, after very mature consideration, decided adversely to appellant’s contention in Livingston v. Superior Court, 117 Cal. 633, 38 L. R. A. 175, 49 Pac. 836—an original proceeding, resting primarily upon the judgment here involved, decided since this appeal was taken. The question is, therefore, no longer an open one.
The other points demand no extended consideration. The complaint sufficiently stated a cause of action, and the motion for a nonsuit was properly denied, since there was evidence sufficient to sustain each of the findings upon which the judgment rests. The finding that defendant had deserted plaintiff is, as contended, clearly without the issues; but this finding may be disregarded, the judgment in no respect requiring such fact for its support. The error is therefore an immaterial one. The judgment and order are affirmed.
