Sheppard v. Sheppard

action for Divorce—Judgment for Maintenance—Appeal—Bill of Exceptions—Objection to Time for Settlement—Presumption of Extension.—In an action for divorce, where judgment was rendered, without divorce, upon cross-complaint of the wife for maintenance by the husband, who appealed therefrom upon a bill of exceptions, and the wife, as respondent, objects to its consideration, on the ground that it was not settled and allowed in time, it must be presumed in favor of thg regularity of the action of the court, where the record shows nothing to the contrary, that the time for ■the settlement of the bill of exceptions was extended under section 1054 of the Code of Civil Procedure by stipulation or by order of the court.

Id.—Waiver of Objection—Absence of Objection in Trial Court.— Where there is nothing in the transcript to show that any objection was made in the court below to the settlement of the bill of exceptions, even if a valid objection might have been interposed, the failure to urge the same must be deemed a waiver thereof.

Id.—Judgment for Maintenance of Wife—Lien upon Property—Support of Finding as to Character of Property Immaterial.— Where the husband, in his action for divorce, alleged that the property involved is his separate property, and judgment was rendered upon the cross-complaint for maintenance of the wife simply making the judgment a lien upon the property, the character of the property is immaterial, and even if the finding of the court that the property is community property is against the evidence and the property is in fact the separate property of the husband, it cannot affect the judgment rendered.

Id.—Answer to Cross-complaint—Offer of Support to Defeat Wife —Good Faith Essential—Question of Fact—Finding.—When the husband, to defeat his wife’s cross-complaint, answered that he had urged her to return to his place of residence and reside with him, and resume the relation of man and wife, it is essential that his offer must be made in good faith. The question of good faith is one of fact to be determined by the trial court, and where that court found against the offer, it is held that this court cannot say from the evidence that the trial court erred in concluding that the offer was not made in good faith.

Id.—Effectiveness of Stipulation of Attorneys.—To be effective, a stipulation made by counsel for the parties must be evidenced by an agreement filed with the clerk or entered upon the minutes of the court.

Id.—Improper Judgment for Attorneys’ Fees Incorporated in Judgment for Maintenance—Absence of Stipulation.—Where there is no stipulation filed with the clerk or entered in the minutes of the court which tends to show that the parties entered into any stipulation relating to attorneys’ fees, or for the postponement of the same to the tiine of trial or incorporation thereof in the final judgment, the judgment for maintenance incorporating a judgment for attorneys’ fees is improper.