Whittle

The complaint alleges that the plaintiff and defendant are husband and wife, but that they have been living separate and apart since August, 1893; that in November, 1893, the defendant received $1,097.60 to and for the use of plaintiff; that said money was partly the separate property of plaintiff and partly community property, and that defendant has not paid the same nor any part thereof.

The answer alleges that all the money received by the defendant was received by her as the wife of the plaintiff, and was necessarily used by her for the necessaries of life, for her board and maintenance, after plaintiff had willfully deserted and separated from her without just cause.

The cause was tried, findings filed, and judgment thereupon entered for plaintiff.

This appeal is from the judgment and the order denying defendant’s motion for a new trial.

Several errors are assigned and argued in appellant’s brief, which we will notice in the order in which they are discussed.

■It is claimed that error was committed in trying the case without the pleadings being before the court. It appears from the bill of exceptions that the plaintiff’s attorney stated to the court that the papers in…