Opinion
APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
COUNSEL:
G. W. & W. B. Tyler, for Appellant, cited Ladd v. Tully, 51 Cal. 277; §§ 462 and 467, Code Civ. Proc.; Phipps v. Harlan, 53 Cal. 87; Billings v. Everett, 52 Cal. 661; Sift v. Canavan, 52 Cal. 417.
John Wade, and James McCabe, for Respondent.
OPINION
McKINSTRY, Judge
The facts are sufficiently stated in the head notes and opinion of the court.
The defendant (appellant) demurred generally to the whole complaint. Appellant now claims there are two counts in the complaint, and that one is insufficient. There is but one count; but if there had been two, one being good, the general demurrer would have been properly overruled.
One of the findings of the court below was " all the material allegations of facts set forth in plaintiff's complaint are sustained and proven by the evidence." Such a finding does not uphold a judgment. We have no means of determining what the court below may deem " material" facts or averments. ( Ladd v. Tully, 51 Cal. 277.) The finding with respect to " extreme cruelty" on the part of defendant is somewhat uncertain. If it be admitted, however, that such finding is sufficient, the record contains no pretense of a finding with reference to the counter-charges of the answer. It is well settled in this State that the findings must respond to all the material issues made by the pleadings. ( Swift v. Canavan, 52 Cal. 417; Billings v. Everett, 52 Cal. 661; Phipps v. Harlan, 53 Cal. 87.) Defendant in an action for divorce may allege and prove facts constituting a cause of divorce against the plaintiff in bar of the plaintiff's cause of divorce. (Civil Code, § 122.) The averment of the facts constituting such recriminatory defense, and the denial thereof by plaintiff (which the law implies), creates a material issue, upon which the court should find.
Judgment and order reversed and cause remanded for a new trial.
McKEE, J., and SHARPSTEIN, J., concurred.