Murdough v. Murdough

KERRIGAN, J.

This is an appeal by the defendant from a judgment in favor of the plaintiff in an action for maintenance taken within sixty days after its entry.

The complaint sets forth in two counts the willful desertion and willful neglect of the plaintiff by the defendant. To the complaint defendant filed a demurrer, and subsequently an answer and cross-complaint. After trial the court found, among other things, that defendant’s income is two hundred dollars per month with board and lodging free, and

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that his expenses do not exceed one hundred dollars per month; that the plaintiff is without funds or property; that defendant willfully deserted plaintiff; that he willfully neglected to support her; that plaintiff never deserted defendant ; that she has been at all times willing to live with defendant and that forty dollars per month, is a reasonable and necessary sum to be awarded plaintiff for her support and maintenance. Judgment was entered accordingly.

The defendant in support of his appeal urges that his special demurrer to the complaint should have been sustained; that the court, so far from sustaining it, never even ruled upon it, and he predicates error upon such omission.

The defendant filed his answer and cross-complaint, and went to trial without seeking to have the court rule upon the demurrer, and for this reason, perhaps, the special demurrer should be regarded as waived by the defendant.

(Reynolds

v.

Hosmer,

45 Cal. 616;

Ward

v.

Clay,

82 Cal. 502, [23 Pac. 50, 227];

Harney

v.

McLeran,

66 Cal. 34, [4 Pac. 884];