Mayr

This appeal, founded on the judgment-roll alone, is taken by defendant as cross-complainant from a judgment denying a divorce to him. As a part of the judgment plaintiff and cross-defendant was awarded one hundred and fifty dollars a month for the support of herself and her minor child, although she also was denied a divorce upon her complaint and proof.

Appellant contends that the court below had no power to enter a decree for alimony under the facts of the ease as found, and that upon the findings the cross-complainant was entitled to a decree of divorce on the grounds of cruelty and of desertion, the latter consisting in the refusal of plaintiff to have reasonable matrimonial intercourse with him. Respondent contends that the cross-complaint lacks the essential allegation of marriage; that the answer and its various amendments do not contain any prayer; and that there is no averment of the “wrongful” infliction of any of the alleged acts of cruelty. It appears, however, that after the filing of the written opinion of the judge who tried the ease, but before the formal findings had been made, leave of court having been obtained, an amendment to the cross-complaint was filed,…