Correia

Clara A. Correia sued her husband for separate maintenance. lie in turn filed a cross-complaint for *370 divorce. After trial the court determined that the plaintiff was entitled to judgment against defendant for separate maintenance on the ground of extreme cruelty but did not award a divorce to appellant on his cross-complaint.

The defendant and cross-complainant appeals, contending that the complaint is fatally defective, that the evidence does not justify the court’s amended finding that he was guilty of extreme cruelty which caused grievous mental suffering and that such finding is void because it is outside the issues.

Section 137 of the Civil Code sets forth the requirements for a separate maintenance action as follows.

1 ‘ When the husband or wife has any cause of action for divorce as provided in this code, or the husband or wife wilfully deserts the wife or husband, or when the husband or wife wilfully fails to provide for the wife or husband, he or she, as the case may be, may, without applying for a divorce, maintain in the superior court an action against her or him, as the case may be, for the permanent support and maintenance of herself or himself, and may…