Hansen

This is an appeal from an order which vacated and set aside an interlocutory decree of divorce.

On March 5, 1959 the plaintiff filed a complaint for divorce. In the complaint she alleged, among other things, that the defendant had been guilty of extreme cruelty and that the greater part of the real property acquired by the parties since their marriage was her separate property, and she requested that it be declared to be hers. She also asked for distribution of the community property, support and maintenance, attorneys’ fees and other benefits. In a first amended complaint she in effect admitted that there might be some basis upon which the real property could be construed to be community property rather than separate property, as alleged in the original complaint.

The defendant filed an answer to the amended complaint and filed a cross-complaint which was answered by the plaintiff. The cause was set for trial December 29, 1959. Upon the court’s own motion the trial was advanced to April 5, 1960, some 13 months following the filing of the original complaint. During most of the interim between the filing of the pleadings and the trial date the defendant was in effect restrained…