(188 P.)

Appeal from Superior Court, San Diego riage, and neither party being interested in County; C. N. Andrews, Judge.

Suit by Mabel E. Huchting against Arnold F. Huchting. From decree for defendant, plaintiff appeals. Affirmed.

the affairs of the other, both became intolerant, and magnified each little frivolity that

occurred, so that when these were discussed with their relatives and friends they became offenses which eventually rendered it impos

Durelle F. Glidden, of San Diego, for ap-sible for the two to live together as man and pellant.

James E. Wadham, Leonard Wright, Wadham & Macomber, all of San Diego, for respondent.

NOURSE, J. Plaintiff instituted this suit for divorce against her husband on the ground of cruelty. The defendant cross-complained upon the same grounds. A decree was entered against the plaintiff upon her complaint and in favor of defendant upon his cross-complaint, and the custody of the two minor children of the parties was awarded to the plaintiff and defendant for alternate pe riods of six months each. Plaintiff appeals upon the grounds that the evidence was sufficient to support a decree in her favor upon her complaint, and that it was insufficient to support the decree in favor of the defendant. No objection is made to the award of the custody of the children or to the failure of the trial court to dispose of the community property of the respective parties.

wife. The evidence produced at the trial is like that which is common to actions of this nature where the relatives and friends of one party line up solidly behind him and against the other, all being anxious to testify on behalf of the leader of the faction with which they have associated, with very little regard for the truth, so long as their testimony will assist the party with whom they have aligned. Thus, the members of the family, relatives, and friends of the plaintiff were positive in their conviction that she was a good and true wife and mother, and that all of the fault for the breach was attributable to the husband. And the family, relatives and friends of the husband took a like attitude when called to support his side of the case. It appears that in October, 1916, the plaintiff, with defendant's consent, went to Utah to visit her father, and that in January, 1917, while still there, addressed a letter to the defendant, telling him that she could no longer live with him. Notwithstanding this attitude on the part of the plaintiff, defendant testified that he was always willing to take her back to his home, and wrote her to that effect, but when she returned to San Diego county in February, 1917, he called upon her in the presence of her family, and informed her that he had seen an attorney and directed him to prepare a complaint for divorce against her, charging her with adultery, and urging her to go down to the city of San Diego and "straighten this out before it goes to court," so that he might have the custody of the children. Immediately following this the plaintiff sought legal advice, and instituted this proceeding. Thus, it appears that both had come to the conclusion that they had reached the parting of the ways, and had started a race to see which one could first get into court for the purpose of procuring a legal separation. The conversations of the parties, occurring immediately prior to the commencement of the action, as indicated by the evidence, show that they had no desire at that time to settle their petty squabbles and re

The facts of the case generally are that plaintiff and defendant intermarried in 1908, she being of the age of 16 years and he of the age of 30 years. They took up their home on a farm in San Diego county, where he performed the ordinary duties of a farmer, and she performed the housework, taking care of her children and cooking for the family and farm hands. The specifications of cruelty in the complaint are that the defendant compelled her to perform unusually arduous duties in and about the farm: that he neglected and manifested little interest in the welfare of the children; that he continually chided and scolded her about her attending dances and parties with other young peo ple of the neighborhood, and, not being interested in or associated with her in these functions, complained that she disturbed his sleep when she returned to the home late at night. There was also some evidence on behalf of the plaintiff to the effect that defendant made threats to end his life because of the differences in the family, but these, apparently were not taken seriously by the trial court. The specifications of cruelty relied up-sume the marriage relation, but that their on by defendant in his cross-complaint are that the plaintiff spent too much of her time in attending dances and parties with her friends, and that she was unduly attentive to a young man who was in his employ, thereby causing gossip in the neighborhood, which, coming to his ears, caused him great mental suffering.

chief interest was in securing the custody of the two children. This attitude was evident throughout the trial, and the defendant seemed so anxious to obtain that result that he disregarded all limits to which a man might go to besmirch the character of their mother.

[1, 2] The trial court had all of the witnesses before it, and in an exhaustive review of An examination of the entire record pre- the evidence found that the charges of cruelsents a case where, through the disparity of ty made by the plaintiff were insufficient to ages of the parties, the relations were uncon- support a decree of divorce upon her comgenial almost from the date of their mar-plaint. As there was no evidence of bodily

WHERE COURT HAS JURISDICTION, THOUGH
PLEADING IS DEMURRABLE.

Even if a petition is obviously demurrable for insufficient statement of facts, the question of its sufficiency will not be examined on habeas corpus, provided it appears that there is an attempted statement of facts which would confer jurisdiction.

cruelty, but the plaintiff relied solely upon 13. HABEAS CORPUS 30(1)—WILL NOT ISSUE mental cruelty, the trial court properly took into consideration the social conditions of the parties and the probability of the plaintift suffering mental cruelty from the acts complained of as shown by her attitude upon the stand and the surrounding circumstances. With this consideration, and in view of the conflicting evidence upon the issue, the findings of the trial court that the acts of the defendant did not constitute such cruelty as would warrant a decree in her favor cannot be disturbed. As said in Robinson v. Robinson, 159 Cal. 203, 204, 113 Pac. 155, 156:

"It should further be borne in mind that the question whether acts and conduct constitute such cruelty as, under all the circumstances shown, warrants the granting of a divorce is of such a nature that the conclusion of the trial court is necessarily entitled to great weight, and it is only where it is clear that it is without any substantial support in the evidence that it will be disturbed on appeal."

[3] The same situation exists as to the attack upon the findings of the trial court regarding the acts of cruelty charged against the plaintiff. Though serious charges were made by the defendant against his wife and evidence was produced by him which would support another cause for divorce, all of which defendant failed to prove or corroborate, there was sufficient uncontradicted evidence to support the conclusion that the plaintiff had not conducted herself in a wifely manner, and that such conduct had hurt defend ant's feelings and caused him mental suffering arising, no doubt, from humiliation in being cast off by his young wife, but sufficient to constitute what is known as cruelty.

For these reasons the judgment is affirmed.

We concur: LANGDON, P. J.; BRITTAIN, J.

Ex parte GUTIERREZ et al. (Cr. 700.) (District Court of Appeal, Second District, Division 2, California. Feb. 11, 1920.)

1. INFANTS 16-PETITION AND FINDING IN JUVENILE COURT PROCEEDINGS HELD SUFFICIENT TO SUSTAIN COURT'S JURISDICTION.

A finding by the juvenile court that the allegation of the petition that minors had no parent or guardian capable of exercising proper parental control substantially meets the requirement of Juvenile Court Law, § 1, subd. 2, and section 9b, and is sufficient to show the jurisdiction of the juvenile court.

2. HABEAS CORPUS 4, 30(1)-NoT FOR BEVIEW OF ERRORS.

The writ of habeas corpus is not intended to perform the functions of a writ of error to review errors or irregularities of proceedings in court having jurisdiction of the person and the subject-matter.

4. HABEAS CORPUS 92(1)

PROCEEDINGS

VIEWED.

-

EVIDENCE IN

ATTACKED CANNOT BE RE

In habeas corpus for discharge from custody of the juvenile court proceedings, which is in the nature of collateral attack on the jurisdiction of court, the sufficiency of the evidence in the juvenile court cannot be reviewed. 5. HABEAS Corpus

92(1)-Power not eN

LARGED IN ATTACK ON JUVENILE COURT PRO-
CEEDINGS.

The general rules governing the power of a court on habeas corpus proceedings are not eniarged on writ to discharge from juvenile court commitment so as to authorize review of the evidence.

6. INFANTS 16-COURTS HAVE LARGER DIS

CRETION IN DEALING WITH CHILDREN.

The courts have larger discretion in dealing with matters pertaining to children than in other cases, since the welfare of the child, as well as the rights of the parents, are to be considered, but that discretion should be exercised with a view to the established rule to recognize the rights of parents, in the absence of radical abuse, to bring up their children in their own way.

Application of Guadalupe Gutierrez and Writ another for writ of habeas corpus. discharged.

E. F. Du Fresne, of Manila, P. I., for petitioners.

E. S. Lovett, of San Diego, for respondent.

SLOANE, J. This application for a writ of habeas corpus for release of two 'infant children from the custody of the probation officer of San Diego county was made by the father of the minors. The infants, aged three years and one year, respectively, were committed to the custody of the probation office by an order of the juvenile court, in proceedings under the juvenile court law. St. 1915, p. 1225. The petition on which the commitment was made charged that the minors "have no parent or guardian capable of exercising proper parental control" and that they are within the provisions of subdivision 2 of section 1 of the act. The court found, in making the commitment, "that the allegations of fact contained in the petition

are true."

The jurisdiction of the court is attacked for alleged insufficiency of the petition and findings.

(188 P.)

in the record, indicate that he had these con-, who was called as a witness on behalf of siderations clearly in mind, and we would the plaintiff in the case of A. L. Gore, Plainnot, in any event in this proceeding, be justified in calling in question the correctness of his conclusions from the evidence before him. We are therefore expressing no opinion on that point.

The writ is discharged.

tiff, v. B. Myers, Defendant." Here follows copy of transcript of the testimony referred to. The sheriff, in his return, showed, among other things that—

"Said B. Myers

was committed to my custody by virtue of a commitment issued by the honorable judge of the superior court We concur: FINLAYSON, P. J.; THOM- of the county of Los Angeles, a copy of which AS, J. is hereto annexed," etc.

Ex parte MYERS. (Cr. 701.) (District Court of Appeal, Second District, Division 2, California. Feb. 11, 1920.) EXECUTION 417-JUDGMENT DEBTOR ABLE TO PAY MAY BE COMMITTED IN SUPPLEMENTARY PROCEEDINGS.

Under Code Civ. Proc. § 1219, court, having found on supplementary proceedings judgment debtor able to satisfy judgment, could order that he be committed to the custody of the sheriff until he shall have complied with the order to satisfy judgment.

In the matter of the application of B. Myers, also known as Boris Myers, for a writ of habeas corpus. Writ discharged, and petitioner remanded.

From said order of commitment it appears that defendant therein, petitioner here, was before the lower court in supplementary proceedings, and the court found that he "had in his possession and under his control, $15,000 *

in the form of Canadian war bonds, and sufficient to satisfy said judgment, and * * * out of which he is able to pay the judgment herein," and ordered that "said defendant forthwith pay to the clerk of this court so much • as is necessary to satisfy said judgment," and that he be committed to the custody of the sheriff until such time as he shall have complied with the order so made.

tention to, and relies upon, the case of Ex Counsel for petitioner has called our atparte Overend, 122 Cal. 201, 54 Pac. 740, to support his contention here. The case is not in point. It was there held that because the Willedd Andrews, of Los Angeles, for peti- court had itself put it beyond the power of tioner.

the witness to comply with its order, by dis

F. S. Hutton, of Los Angeles, for respond-charging the jury and discontinuing the trial ent.

THOMAS, J. Petitioner here, claiming that he is "unlawfully imprisoned, detained, confined, and restrained of his liberty by the Sheriff of Los Angeles county," asks this court that a writ of habeas corpus may be granted, directed to said sheriff, restoring petitioner to his liberty, etc.

at which petitioner was called as a witness, the petitioner in that case could not be indefinitely punished for contempt under section 1219 of the Code of Civil Procedure, while in the case at bar the court found that petitioner could perform, and therefore he was amenable to the order made, under the terms of the section above cited, nothing appearing to the contrary in the record before us.

It is alleged that said imprisonment, etc., is illegal, in that "no complaint has been Though the facts here differ materially filed in the superior court of the state of Cal- from those in the Matter of Gutierrez, 188 ifornia, in and for the county of Los Angeles, Pac. 1004 (Crim. No. 700)—which was also an charging this petitioner with any criminal application for a writ of habeas corpusoffense or crime," and that he "was ordered opinion in which has this day been filed, the and committed into the custody of the sher-reasons there given for denying the writ are iff of Los Angeles county by the equally applicable here.

honorable Grant Jackson, judge of the supe-
rior court,
which commitment is
dated February 6, 1920,
and is
based on the following testimony of B. Myers,

The writ is discharged and the prisoner remanded.

We concur: FINLAYSON, P. J.; SLOANE, J.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(188 P.)

that it appears from the opening brief that FRIEND & TERRY LUMBER CO. v. DE- the only ground of appeal is the alleged inVINE et al. (Civ. 2063.) sufficiency of the evidence to support the

(District Court of Appeal, Third District, Cal- judgment, and that it appears from a comparifornia. Feb. 18, 1920.) ison of the typewritten transcript on appeal that the appellant has failed to print in said opening brief all of the record of the evidence adduced at the trial.

1. APPEAL AND ERROR 757(1) STATUTE DOES NOT RELIEVE PARTY OF PRINTING IN

BRIEF MATERIAL PARTS OF RECORD.

Code Civ. Proc. § 953c, as amended by St. 1919, p. 261, providing that no appeal shall be dismissed or decided adversely to any party for failure to print in his brief the portion of the record in support of his points, but that the court shall direct such party to print a supplement to his brief, does not relieve parties from the necessity of printing in their briefs or in a supplement appended thereto such portion of the record as they desire to call to the court's attention when the appeal is taken under section 953 et seq.

2. Appeal and error ~757(1)—PARTY ONLY does not relieve the parties from the neces

We concur: ELLISON, Judge pro tem. ; BURNETT, J.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes