Hardy

The plaintiff brought this action under the provisions of section 137 of the Civil Code to recover permanent alimony from the defendant without seeking a divorce. The complaint is framed with two counts, but as a demurrer to the first count was sustained, and the cause was tried upon the issues presented by the answer to the second count, only the matters therein alleged can be considered. The court rendered judgment in favor of the plaintiff, awarding her twenty dollars a month, from which, and from an order denying a new trial, the defendant has appealed.

The court finds that the defendant deserted the plaintiff on the 19th of December, 1887, and also that she had not deserted him, but that, by reason of his cruelty towards her, she was compelled to leave his house and live separate from him. These findings are challenged in the statement as unsupported by the evidence, and it is also contended on the part of the appellant that the evidence shows that the plaintiff deserted the defendant in 1860.

The plaintiff and defendant were married in 1853, and lived together as husband and wife in the vicinity of Martinez for nearly seven years. In February, 1860, the plaintiff left the…