Bauer v. Bauer

STURTEVANT, J.

The plaintiff commenced an action against the defendant to obtain a divorce based on the alleged cruelty of the defendant. The summons and complaint were served on the defendant and as he failed to appear his default was entered. The plaintiff’s evidence was taken before a commissioner and thereafter, on June 21, 1923, an interlocutory decree was rendered in which it was recited that a divorce ought to be granted to the plaintiff and that she was entitled to a divorce on the ground of defendant’s extreme cruelty to her and “that defendant pay to plaintiff as a suitable allowance for her support and maintenance the sum of $150 on the first day of July, 1923, and the sum of $150 on the first day of each and every month thereafter for the term of six years, and the sum of $100 on the first day of each and every month thereafter.” Thereafter no other proceedings were had until the twenty-third day of June, 1924. At that time, without taking any other testimony and basing its action solely upon the testimony theretofore taken, the trial court, on the motion of the plaintiff, entered a final decree, among other things, as follows: “And it is further ordered, adjudged and decreed that defendant pay to plaintiff as a suitable allowance for her support and maintenance the sum of $150 on the first day of July, 1924, and the sum of $150 on the first day of each and every month thereafter for the term of five years, and the sum of $100 on the first day of each and every month thereafter.” Thereafter, on the fifteenth day of July, 1924, the defendant filed a notice of appeal, quoting the paragraph which we have just quoted, and stating that he appealed from that portion of the judgment. Thereafter, on the twenty-fourth day of September, 1924, the defendant filed a bill of exceptions which purports to

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contain the proceedings from the fourth day of June, 1923, down to and including the final decree hereinabove referred to. At this time the appellant contends (a) the complaint does not state facts sufficient to constitute a cause of action against the defendant; (b) the complaint does not state facts sufficient to warrant the making of any allowance to plaintiff for support; (c) the proof was and is-insufficient to authorize the granting of a decree for any offense of defendant, and (d) there is no basis in the record upon which a provision for support can be predicated. The foregoing contentions, as shown by the record before us, were all contained within the record in so far as it purports to be an attack on the interlocutory decree. However, the interlocutory decree was itself an appealable order. (Civ. Code, sec. 132.) Having failed to appeal from that order the defendant may not review that order on an appeal from the final judgment. (Code Civ. Proc., sec. 956;