relief may be granted to the defendant upon a cause for divorce from the plaintiff.— Blakely v. Blakely, 89 Cal. 324, 26 Pac. 1072. FOR AUTHORITIES FROM OTHER STATES: See 14 Cyc. 672-674; 17 Cent. Dig., cols. 590-591, §§ 322-327. § 40. Demurrer. [a] An objection, in proceedings for a divorce, that the complaint is insufficient in not properly stating the facts showing the property to be common, must be raised by demurrer.-Gimmy v. Gimmy, 22 Cal. 633; Gimmy v. Doane, 22 Cal. 635. [b] If there is any uncertainty in either count as to residence of the plaintiff, or as to other allegations, the objection should be taken by demurrer, on the ground of uncertainty. Reading v. Reading, 96 Cal. 4, 30 Pac. 103. [c] Court cannot strike out or overrule demurrer in divorce suit and refuse defendant right to answer.-Foley v. Foley, 120 Cal. 42, 65 Am. St. Rep. 147, 52 Pac. 122. FOR AUTHORITIES FROM OTHER STATES: See 14 Cyc. 672; 17 Cent. Dig., col. 589, §§ 320, 321. § 41. Supplemental Pleadings. [a] The rule requiring a supplemental complaint to refer to matter in aid of the case made by the original complaint, and occurring between the filing thereof and the judgment, applied, where the original action was brought to obtain a divorce and division of the common property, but the supplemental complaint sought to enforce an alleged trust arising out of an express contract between the parties while married, in performance of which the defendant, after the judgment, acquired title to property for the benefit of the plaintiff.-Gleason v. Gleason, 54 Cal. 135. FOR AUTHORITIES FROM OTHER STATES: See 14 Cyc. 674-677; 17 Cent. Dig., cols. 591-597, §§ 328-339. § 42. Issues and Proof. [a] Marriage of the parties is sufficiently proved by defendant's admission or failure to traverse the allegation of it in the complaint.-Fox v. Fox, 25 Cal. 587. [b] Residence of the applicant in state for the preceding six months must be alleged in the complaint and proved on the trial, although it is not denied in the answer.-Bennett v. Bennett, 28 Cal. 599. FOR AUTHORITIES FROM OTHER STATES: See 14 Cyc. 679, 680; 17 Cent. Dig., cols. 601-605, §§ 349-352. § 43. Waiver of Objections. [a] Facts constituting a charge of adultery, with. circumstances of time and place, should be averred specifically; but objection is waived by failure to demur.--Conant v. Conant, 10 Cal. 249, 70 Am. Dec. 717. D. EVIDENCE. PRESUMPTIONS AND BURDEN OF PROOF, § 44. CONFESSIONS OR ADMISSIONS, 46. WEIGHT AND SUFFICIENCY, § 48. MARRIAGE, § 50. RESIDENCE OF PLAINTIFF, § 51. § 44. Presumptions and Burden of Proof. [a] he act of a husband in leaving the country three weeks after his marriage, and remaining absent for nine years without contributing to his wife's support, will raise a presumption of an intention to desert, justifying a divorce in favor of the wife on such ground, without any evidence of the circumstances and causes of the separation. Morrison v. Morrison, 20 Cal. 431. [b] A plaintiff for divorce on the ground of desertion is not required to show nega. tively that no cause for the desertion existed. Morrison v. Morrison, 20 Cal. 431. [c] In an action for divorce on the ground of adultery, the fact that the husband enters a house of prostitution in the evening and remains all night, raises a presumption of adulterous intercourse, and casts on him the burden of showing that he is innocent.Evans v. Evans, 41 Cal. 103. [d] It will be presumed that charges made in complaint for divorce were untrue when action was voluntarily dismissed.-Cooper v. Cooper, 88 Cal. 48, 25 Pac. 1062. [e] Though, in a suit for divorce, it appeared that prior to plaintiff's marriage to defendant she had been married to a third person, and that her former husband was living, it was not necessary for her to show that the former marriage had been dissolved, that fact being presumed from the solemnization of the second one.-McKibben v. McKibben, 139 Cal. 448, 73 Pac. 143. FOR AUTHORITIES FROM OTHER STATES: See 14 Cyc. 681; 17 Cent. Dig., cols. 607611, §§ 354-364. § 45. Admissibility. [a] A question asked a witness in a divorce case held under the pleadings and in its general form an immaterial inquiry.-— Avery v. Avery (Cal. Sup.), 82 Pac. 967. FOR AUTHORITIES FROM OTHER STATES: Admission in suits for divorce, effect of: 30 Am. Dec. 544, note. FOR AUTHORITIES FROM OTHER STATES: Physical examination of person, power of courts to require submission to in suits for divorce: 3 Am. St. Rep. 556, note. See, also, 14 Cyc. 682-686; 17 Cent. Dig., cols. 612-624, §§ 365-391. $ 46. Confessions or Admissions. [a] Confessions of defendant are admissible, but must be corroborated.-Baker v. Baker, 13 Cal. 88. [b] The object of the rule requiring proof in corroboration of defendant's confessions is to guard against collusion; and when the entire testimony, confessions, and circumstances repel all suspicion of collusions, and leave no doubt of the truth of the confessions, the court should act upon them.-Baker v. Baker, 13 Cal. 87. [c] Confessions or admissions of defendant can be given in evidence.-Evans v. Evans, 41 Cal. 103. attorney's statements of communications which were made to him without cruel intent, and not shown to have produced any effect on the wife.-Haley v. Haley, 67 Cal. 24, 7 Pac. 3. [c] In an action by the husband for divorce for desertion, the wife answered, charging that the husband's cruelty forced her to leave. There was no evidence to support plaintiff's testimony, except that defendant lived at some distance in a house owned by plaintiff, and had said she was not coming back to his farm, and also the record of a former suit by the wife for divorce for cruelty, where it was found he was not guilty of cruelty, and the divorce was denied, but the wife was allowed twenty-five dollars per month. Held not sufficient to warrant a divorce under Civil Code, section 130, providing that a divorce cannot be granted on the uncorroborated statements, admissions, testimony of the parties.-Hagle v. Hagle, 74 Cal. 608, 16 Pac. 518. or [d] Court may believe uncorroborated testimony of wife as against that of husband on issue as to whether her desertion was justified by his cruelty.-White v. White, 86 Cal. 221, 24 Pac. 996. [e] Plaintiff's testimony need not be corroborated on every fact and circumstance testified to if there be corroboration on fact or facts sufficient to support judgment.Cooper v. Cooper, 88 Cal. 48, 25 Pac. 1062. [f] In an action for divorce on the ground of extreme cruelty, plaintiff's testimony that defendant charged her with infidelity, called her vile names, and communicated to her a loathsome disease, was sufficiently corroborated, as required by Civil Code, section 130, by a letter written by defendant to plaintiff, charging her with having committed adultery with a certain person; by the testimony of a witness that plaintiff came to his store crying, and saying that defendant had threatened her, and called her vile names; that he (witness) sent for defendant, and informed him of his wife's complaints and charges, and that defendant did not deny them; and by the testimony of a physician that he treated plaintiff for the disease which she claimed defendant communicated to her. Venzke v. Venzke, 94 Cal. 225, 29 Pac. 499. [g] Where the testimony of the plaintiff, in an action for divorce upon the ground of extreme cruelty, is sufficiently corroborated as to certain acts and declarations sufficient to constitute extreme cruelty, it is not material or necessary that her testimony should be corroborated as to all other distinct acts of cruelty alleged in the complaint.-Wolff v. Wolff, 102 Cal. 433, 36 Pac. 767, 1037. [h] Where the evidence of extreme cruelty, upon which a divorce is partly based, consists wholly of the uncorroborated evidence of the party seeking a divorce upon that ground, there is no sufficient evidence to sustain the divorce upon that ground.-Reid v. Reid, 112 Cal. 274, 44 Pac. 564. [i] Rule as to what constitutes corroboration laid down in Evans v. Evans, 41 Cal. 108, reaffirmed.-Smith v. Smith, 119 Cal. 191, 48 ac. 730. [j] Principal object of rule requiring corroboration of plaintiff's testimony is to prevent collusion and when evident that there is no collusion very little corroboration is sufficient. Smith v. Smith, 119 Cal. 191. [k] Section 130, Civil Code, does not require that there should be direct testimony of other witnesses to every act of cruelty sworn to by plaintiff.-Andrews v. Andrews, 120 Cal. 186, 52 Pac. 298. [1] Main purpose of section 130, Civil Code, is to prevent collusion, and it is sufficient corroboration if considerable number of important facts are testified to by others or there is other evidence, circumstantial or direct, strongly tending to confirm plaintiff's testimony. Andrews v. Andrews, 120 Cal. 186, 52 Pac. 298. [m] Where plaintiff alone testifies as to personal abuse by his wife, and she explicitly denies the language alleged to have been used, no divorce can be granted under Civil Code, section 130, prohibiting the same on the uncorroborated statement of either party. Kuhl v. Kuhl, 124 Cal. 57, 56 Pac. 629. [n] Object of section 130, Civil Code, requiring corroboration of plaintiff's evidence is to prevent collusion.-McMullin v. McMullin, 140 Cal. 119, 73 Pac. 808. [o] The attitude of the defendant in refusing a reconciliation, or to cohabit with the plaintiff under any circumstances, and the declarations of the defendant to third parties at the time of and subsequent to the offer of reconciliation, are a sufficient corroboration of the plaintiff's evidence.-McMullin v. McMullin, 140 Cal. 112, 73 Pac. 808. [p] Under the express provisions of Civil Code, section 130, a divorce may not be granted on the uncorroborated evidence of either party.-Berry v. Berry, 145 Cal. 784, 79 Pac. 531. [q] The provision of Civil Code, section 130, that no divorce can be granted upon the uncorroborated. .. testimony of the parties, " has no application to a case where the wife seeks a divorce on the ground of a false and malicious charge against her by the husband of concealed pregnancy by another man at marriage, although she is the only witness who gave testimony as to what Where her feelings about the charge were. the court finds that the charge was false, and there is nothing in the record to negative the fact that the wife is a pure and virtuous woman, the presumption is that such a charge had its natural effect on such a woman, and caused her "grievous mental suffering."-Haley v. Haley, 14 Pac. 92. [r] Statement as to corroboration required under Civil Code, section 130, in a divorce [a] If, in an action for a divorce, the wife testifies to acts of personal violence committed by the husband, evidence of the husband attempting to excuse or apologize for such acts will not regarded as substantially contradicting her.-Matthai v. Matthai, 49 Cal. 91. [b] Evidence that a husband attempted to excuse or apologize for acts of personal violence does not contradict the wife's testimony as to the commission of such violence, in an action by her for divorce on the ground of extreme cruelty.-Matthai v. Matthai, 49 Cal. 90. [c] Refusal of trial court to grant a divorce sought on the ground of extreme cruelty will not be disturbed where the only evidence of cruelty was a letter written by the husband to the wife, in which he charged that she had communicated a venereal disease to him, when neither party actually had the disease, as appeared from the testimony of physicians, and her own testimony that she was sick for three or four days after receiving the letter, but that she did not call a doctor.-Hatton v. Hatton, 136 Cal. 353, 68 Pac. 1016. [d] In divorce plaintiff testified that defendant often, in the presence of others, accused her of being intimate with other men; that he had a venereal disease, and accused her of giving it to him; that he many times threatened to take the minor child away from plaintiff, and on one occasion took the child away for about two weeks, and would not tell plaintiff where it was; that he called her a prostitute, and left her often without means of support; that she had to support [e] Plaintiff's physician testified, inter alia, that her nose had been flattened by a blow, that defendant admitted having struck her, but said he did not mean to, and seemed ashamed. Their son swore that he had heard his father call his mother insulting names as long as she lived with him. Since the assault, plaintiff had been generally sick in bed, and her husband's language seemed to make her worse. Held sufficient proof of "extreme cruelty," consisting of a blow and abusive language, to the injury of plaintiff's health.-Johnson v. Johnson, 35 Pac. 637. [f] Evidence in a divorce case held sufficient to sustain a finding of extreme cruelty as defined by Civil Code, section 94.-Avery v. Avery (Cal. Sup.), 82 Pac. 967. [b] That parties have lived separate for years does not prove willful desertion.Christie v. Christie, 53 Cal. 27. [c] Evidence showing that the husband, without cause, separated himself from the marriage bed, and did not thereafter seek a renewal of matrimonial intercourse, for more than one year, is sufficient to show a persistent refusal thereof by him, and it is not required, in order to show such refusal, that the wife shall solicit his return to the marriage couch.-Vosburg v. Vosburg, 136 Cal. 195, 68 Pac. 694. [d] The character of the separation between a husband and wife is not forever established by the status at the time they ceased to live together, but what was originally a separation without consent may become a separation by consent, and whether it has become such is a question of fact. Judgment (1902) 71 Pac. 108, reversed.McMullin v. McMullin, 140 Cal. 112, 73 Pac. 808. [e] In an action for divorce for desertion evidence held insufficient to support a finding that the separation between plaintiff and defendant was voluntary, and with defendant's consent.-McMullin v. McMullin, 71 Pac. 108. tained by proof that she had lived with her parents for four years, and that he had supplied her with all the money and supplies for which she had made application.—Christie v. Christie, 53 Cal. 26. [b] In divorce, evidence held insufficient to show that defendant had failed to support his wife to the best of his ability.-Berry v. Berry, 145 Cal. 784, 79 Pac. 531. FOR AUTHORITIES FROM OTHER STATES: E. DISMISSAL, TRIAL AND NEW TRIAL. DISMISSAL, § 56. TRIAL, 57. QUESTIONS FOR COURT AND JURY, § 58. REFERENCE, § 61. NEW TRIAL, § 62. § 56. Dismissal. [a] Where cross-complaint entitling defendant to affirmative relief is filed, plaintiff cannot dismiss.-Mott v. Mott, 82 Cal. 415, 22 Pac. 1140, 1142. FOR AUTHORITIES FROM OTHER STATES: See 14 Cyc. 701, 702; 17 Cent. Dig., cols. 676-679, §§ 463-470. § 57. Trial. [a] In a divorce suit, trial by jury is not a matter of right.-Cassidy v. Superior Court, 64 Cal. 266, 28 Pac. 234. [b] Parties to divorce suit should be afforded fullest opportunity to be heard.— Wadsworth v. Wadsworth, 81 Cal. 183, 15 Am. St. Rep. 38, 22 Pac. 648. FOR AUTHORITIES FROM OTHER STATES: § 58. Questions for Court and Jury. [c] Whether ill-treatment constitutes extreme cruelty is largely question of fact for trial court.-Andrews v. Andrews, 120 Cal. 187, 52 Pac. 298. [d] Whether conduct alleged in the complaint causes such grievous mental anguish as to constitute a ground for divorce is a question of fact to be determined by the trial court from the testimony.-Curl v. Curl, 130 Cal. 638, 63 Pac. 65. [a] In an action for divorce, where there is a failure to traverse the allegation of marriage in the complaint, it is not necessary the fact of the marriage should be found.— Fox v. Fox, 25 Cal. 587. [b] Under Code, section 105, authorizing a divorce for a husband's neglect to support his wife while he is able to do so, or for his neglect to do so while he is unable to do so because of his idleness, profligacy, or dissipation, a divorce should not be granted under a finding that defendant failed to support his wife while able to do so, where the petition alleges failure to support because of dissipation.-Devoe v. Devoe, 51 Cal. 543. [c] Where the statute requires that habitual intemperance shall have continued for a year to afford ground for a divorce, the fact that it has continued for a year must be found, or a judgment of divorce cannot be sustained.-Dunn v. Dunn, 62 Cal. 176. [d] The finding "that the repeated acts of cruelty, as established by the evidence, upon the part of said defendant towards her said husband and children during the last several years, have inflicted upon the plaintiff grievous mental suffering," is but a conclusion of law, and does not find any fact in issue in the case. Smith v. Smith, 62 Cal. 466. [e] A recriminatory defense, under Civil Code, section 122, consisting of a cause of divorce against plaintiff, creates a material issue on which a finding is essential to sustain a degree for plaintiff.-Cassidy v. Cassidy, 63 Cal. 352. [f] Civil Code, section 130, provides that no divorce can be granted upon the uncorroborated statement, admission, or testimony of the parties. A husband sought divorce for adultery and desertion, and the wife, by cross-complaint, sought it for adultery and extreme cruelty. The court found the wife innocent of both charges, and granted her a divorce for the adultery of her husband; but also found that the specific acts of extreme cruelty were mainly sustained by the wife's evidence, which was contradicted by the husband, and the corroborating circumstances were insufficient to establish them. Held that, while the court was restrained by the statute from finding cruelty as a ground of divorce, it was at liberty to find it as a justification for the desertion, and there was no conflict in the findings.-White v. White, 86 Cal. 219, 24 Pac. 996. [g] Where, in an action for divorce, findings are made on issues raised by specific denials of allegations in the complaint of desertion and failure to support for a year prior to the action, a separate finding is unnecessary on an allegation in the answer of defendant's willingness and offer to support the plaintiff during the time.-Terrill v. Terrill, 109 Cal. 413, 42 Pac. 137. [h] Finding that acts complained of "have never been condoned" is sufficient finding of fact. Smith v. Smith, 119 Cal. 188, 48 Pac. 730. [i] Though defendant relies on a recriminatory answer, a failure to find on his charges is not reversible error, where, had the court found the several acts and things complained of in the language in which they were al leged by defendant, the findings would not have justified a decree of divorce; Civil Code, section 122, providing that "recrimination is a showing by defendant of any cause of divorce aginst plaintiff in bar of plaintiff's cause of divorce."-Smith v. Smith, 119 Cal. 183, 48 Pac. 730. [j] In an action for divorce on the ground of extreme cruelty, where defendant has pleaded extreme cruelty by plaintifi, and condonation of defendant's offense, and there are findings of fact for plaintiff, a conclusion of law that plaintiff is entitled to a decree dissolving the bonds of matrimony, etc., is sufficient to support a judgment of divorce.Smith v. Smith, 119 Cal. 183, 48 Pac. 730. [k] A memorandum of decision in a divorce case which fails to show the jurisdictional fact of residence, or the facts constituting the grounds for divorce, and which does not contain a separate statement of facts and conclusions of law, and does not direct judg ment, is insufficient, as a finding of fact, to sustain a judgment.-O'Brien v. O'Brien, 124 Cal. 422, 57 Pac. 225. [1] Where the evidence shows condonation of the acts for which a divorce is sought, it is the duty of the court to find to that effect, though condonation was not pleaded.-Hunter v. Hunter, 132 Cal. 473, 64 Pac. 772. [m] In an action for divorce for intem perance and cruelty, where the court found that the defendant was never habitually intemperate, nor so intemperate as to cause great mental anguish, and that defendant has |