Howdershell

This is an appeal by the defendant from a judgment of divorce in plaintiff’s behalf on the ground of desertion. The sole contention of the appellant herein is that the evidence in the ease shows that the separation between the parties, upon which the plaintiff’s claim of desertion on the part of the defendant is based, was a voluntary separation occurring as the result of an agreement in writing between the parties for such separation and for a settlement of their property rights. Defendant claimed at the trial and contends upon this appeal that, under section 99 of the Civil Code, “separation by consent with or without the understanding that one or the other party will apply for a divorce is not desertion.” The difficulty with the defendant’s contention in that regard does not arise out of the section of the code above cited, but arises out of its application to the facts of the case at bar. These facts as found by the court and as fully supported by the evidence are briefly these:

The parties to this action intermarried in the year 1904, and lived together as husband and wife until some time in the month of April, 1917, at which time they were residing in the city of Los…