Daroux

This is an appeal on the part of the defendant from a judgment in the plaintiff’s favor in an action for divorce instituted by him on the ground of cruelty and in which it was also sought to have the property rights of the parties determined.

There is a preliminary motion to dismiss the appeal upon the ground that the defendant, having received and retained certain portions of the property in dispute between the parties and dealt with in the interlocutory decree, has thereby lost her right of appeal. In view of the fact, however, that the settlement of the property rights of the parties to an action for divorce is a mere incident of the main purpose of the action, and also in view of the dis position of the courts to hear and determine actions for divorce upon both trial and appeal upon their merits, we have concluded to deny the motion to dismiss this appeal, and to deal with the main issue presented to us.'

[1] It is conceded by the appellant that upon the main issue of cruelty the evidence offered on behalf of the respective parties is “in hopeless conflict,” and for that reason the appellant does not ask this court to review the findings and conclusions of the trial court in…