Krause

The sole issue raised on this appeal relates to the construction and effect of section 426b of the Code of Civil Procedure.

Plaintiff wife filed suit for divorce, alleging extreme cruelty in general terms. Defendant husband duly filed his demand, pursuant to section 426b of the Code of Civil Procedure, for a more specific statement of the acts of cruelty relied on. 1 Fifteen days later, plaintiff filed her amended complaint, setting out sundry specific acts. Nine days thereafter, defendant answered, denying the acts as alleged and alleging also that “plaintiff by failing to comply with C. C. P. Section *297 426b is barred from proving any acts of cruelty at the time of trial.” 2 No further action was taken until seven months later, when the action came on for trial. It is stipulated 3 that, at that time, defendant objected to evidence as to the specific acts and that such objection was overruled. Plaintiff was granted an interlocutory decree and defendant has appealed.

It is not here contended that plaintiff’s amendment, when served and filed, was insufficient in its allegations of specific acts. The sole argument is that, the amendment having been five days late, it was…