216 P. 603 | Cal. | 1923
This is an action by a wife for separate maintenance, based upon allegations of cruelty and nonsupport. The husband filed a cross-complaint for divorce upon the ground of cruelty. The court denied both maintenance and divorce. The defendant appeals from the judgment, and respondent files no brief and makes no appearance in this court. Appellant's claim is that the court did not sufficiently find the facts as to his allegations of cruelty. The finding of the court was to the effect that it was not true that the matters complained of had caused the defendant grievous mental suffering or great mental anguish. Reference was made in the finding to the paragraph of the cross-complaint and its numerous subdivisions charging plaintiff with cruelty. *439
Appellant relies upon the cases of Smith v.Smith,
[1] Findings contained in the judgment itself are sufficient. (Hopkins v. Warner,
[2] There is another reason for affirming the judgment. The trial court found that there had been mutual condonation, and this finding is not attacked. We do not base our decision on this ground, however, although it is amply sufficient in the absence of an attack, because an examination of the record shows that this finding is based upon the testimony of both parties that matrimonial intercourse continued until the filing of the cross-complaint, and if this is the sole basis of the finding of condonation the evidence would not support the finding. (Civ. Code, sec. 118)
Judgment affirmed.
Myers, J., Seawell, J., Lawlor, J., Waste, J., Kerrigan, J., and Richards, J., pro tem., concurred. *440