Mathews

Appeal from a special order of the superior court of San Mateo County, granted on motion of defendant for an order vacating the portion of an interlocutory judgment allowing plaintiff alimony.

Plaintiff instituted the action for divorce on grounds of extreme cruelty. Before trial a written stipulation was entered into between the parties which provided, among other matters, that if the court awarded a decree of divorce to plaintiff thirty dollars per month might be awarded to plaintiff as permanent alimony. Thereafter an interlocutory judgment was granted to plaintiff which provided that defendant pay plaintiff thirty dollars per month as permanent alimony. This interlocutory judgment was not appealed from nor modified, and the necessary time having elapsed, final decree of divorce was entered, which decree was silent on the subject of maintenance or alimony.

Shortly after six months from the the entry of such final decree defendant moved to modify the interlocutory judgment by vacating the portion thereof which provides for the payment of alimony. Such motion was made upon the grounds that the final decree did not contain any direction as to the payment of alimony and that the…