Kepfler v. Kepfler

GRAY, C.

Action for divorce on the grounds of habitual intemperance of defendant, inflicting a course of great mental anguish upon plaintiff, and the extreme cruelty of defendant. The defendant had judgment. The plaintiff moved for a new trial, and appeals from the order denying her motion. There is no appeal from the judgment.

1. The first point urged by appellant is, that findings were not filed until more than six months after the case was submitted for decision and the court had ordered judgment for defendant. This is not one of the grounds for a new trial specified in the code. (See Code Civ. Proc., sec. 657.) Nor can any such question be reviewed on an appeal taken only from the order denying a new trial.

(Brison

v.

Brison,

90 Cal. 323;

Rauer

v.

Fay,

128 Cal. 523;

Fogarty

v.

Fogarty,

129 Cal. 46;

Owen

v.

Pomona Land and Water Co.,

131 Cal. 530;

Reclamation District

v.

Thisby,

131 Cal. 572.) The cases cited hold that the sufficiency of the findings to support the judgment cannot be considered upon an appeal from an order denying a new trial. It must follow that an objection based upon the ground here urged cannot be heard or considered upon such an appeal.

2. The court found that “the defendant was never habitually intemperate, nor was he ever intemperate from the use of intoxicating drinks to,, such a degree that by reason thereof a course of great mental anguish had been inflicted upon said plaintiff.” The court further found “that the defendant has not treated the plaintiff with extreme cruelty, and has not inflicted upon her great mental suffering or anguish,” and also, “that the defendant never inflicted upon the plaintiff grievous bodily injury nor grievous mental suffering.”