further than the exigencies of the decree in favor of the wife require, all else belonging to the transferee.

ID.-DECREE FOR MAINTENANCE-PROPERTY OF HUSBAND TO BE FIRST RESORTED TO. In an action by a wife for maintenance, the separate property of the husband, conveyed by him without consideration in order to hinder and defraud the plaintiff and to deprive her of her right to support, cannot be resorted to for payments of the amounts accruing under the decree in the wife's favor, as long as the husband has other property of his own available for that purpose. ID.-VALUE OF HUSBAND'S PROPERTY-UNSUPPORTED FINDINGS.-Findings as to the value of the untransferred property of the husband, showing it to be insufficient to provide for the payment of the maintenance awarded by the decree to the wife, are held unsupported by the evidence.

APPEAL from an order of the Superior Court of Orange County refusing a new trial. Z. B. West, Judge.

The facts are stated in the opinion of the court.

Kendrick & Ardis, for Appellants.

John E. Daly, and Hugh T. Gordon, for Respondent.

ANGELLOTTI, J.-This is an appeal by defendants from an order denying their motion for a new trial in an action brought by plaintiff to obtain a decree requiring defendant Hoggatt Clopton, her husband, to pay her monthly, for her support and maintenance, the sum of two hundred and fifty dollars per month, together with attorney fees and costs for the prosecution of the action.

Plaintiff alleged in her complaint that she was without means and physically unable to earn money for her support. Defendants Pearl Clopton and Hugh Clopton, the children of Hoggatt Clopton, were made parties defendant, it being alleged substantially as to them that Hoggatt Clopton, in anticipation of her action and for the purpose and design to hinder, delay, and defraud the plaintiff and to deprive her of her right to support and maintenance, had conveyed to them, without consideration, all of his real property, specifically described in the complaint and alleged to be worth not less than one hundred thousand dollars. She asked as to them that any allowance made her be adjudged a lien against such real property so conveyed. Her complaint against her husband

upon which her prayer for permanent support and maintenance was based, was that he had been guilty of extreme cruelty constituting cause for divorce. Defendant Hoggatt Clopton by his answer denied the allegations of cruelty, denied that he had conveyed all of his property to his co-defendants, and denied that such as had been conveyed had been so disposed of with intent to defraud plaintiff or deprive her of support or maintenance. He also, by cross-complaint, asked for a divorce on the ground of extreme cruelty inflicted on him by plaintiff. Defendants Hugh Clopton and Pearl Clopton each answered, denying the allegations of the complaint that the several conveyances to them were without consideration or were made with the intent or purpose set forth therein, and alleging that Hoggatt Clopton is the owner of a house and lot in the city of Los Angeles and other property reasonably worth the sum of eleven thousand dollars, and that the income from said property is sufficient to support plaintiff.

The trial court found in favor of plaintiff upon the issues of extreme cruelty and necessity for support and maintenance by her husband. It further found that defendant had conveyed to Pearl Clopton and Hugh Clopton all of his real property except a lot in the city of Los Angeles, without consideration and with the intent and purpose alleged in the complaint, the same being parcels of land at Long Beach in Los Angeles County and at Huntington Beach, Newport Beach, and Santa Ana in Orange County. It found that the value of all of said property, including that in the city of Los Angeles, was twenty-two thousand dollars. It further found that the only property left Hoggatt Clopton was the lot in the city of Los Angeles, of the value of twenty-five hundred dollars and subject to a mortgage for eleven hundred dollars, and producing an income of about twelve dollars a month, and certain oil stock and stock in the Huntington Beach Tent City Company, neither of which had any market value, and that said property "is insufficient to answer for a judgment to be made in this cause," that the income from said land is not "sufficient for the support of plaintiff."

Judgment was given that Hoggatt Clopton pay plaintiff seventy-five dollars per month for her maintenance, and two hundred and fifty dollars counsel fees, that said charges constitute a valid lien upon all the property at Huntington

Beach and Long Beach so conveyed to Hugh Clopton and Pearl Clopton, and that neither of said last-named defendants has any interest in any of the property conveyed to him and her respectively, "except subject to the lien of this judgment in plaintiff's favor."

Defendants' motion for a new trial was ordered granted unless plaintiff file a release and discharge of her judgment as to all the property described in the findings and judgment except that situate at Huntington Beach in Orange County. This requirement having been complied with by plaintiff, the motion for a new trial was denied.

1. It cannot be held that the findings of the trial court upon the issues of extreme cruelty on the part of defendant Hoggatt Clopton and that his acts in this regard were without sufficient cause or provocation (for this is what the finding in this behalf means) are without sufficient support in the evidence. We do not mean to say that were we acting as trial judges in this case, our conclusion would have been the same upon this question as was that of the trial judge. We simply mean what has so often been said by this court, that the decision of the trial court upon questions of fact is conclusive upon us, in so far as there is any substantial evidence tending fairly, with such inferences as may reasonably be drawn therefrom, to support such decision, even though we may think that a different conclusion should have been reached. As was said in Robinson v. Robinson, 159 Cal. 203, [113 Pac. 155], "it should further be borne in mind that the question whether acts or conduct constitute such cruelty as under all the circumstances shown warrants the granting of a divorce is of such a nature that the conclusion of the trial court is necessarily entitled to great weight, and it is only where it is clear that it is without any substantial support in the evidence that it will be disturbed on appeal." No useful purpose would be subserved by a discussion of the evidence given on this issue.

We find no prejudicial error in any action of the trial court, complained of in the brief, in the matter of evidence on this issue.

The objection that a question asked defendant Hoggatt Clopton was suggestive and leading was not good and should not have been sustained, but he subsequently gave the desired evidence. The writing signed by him relative to a proposed

compromise of a prior divorce action was not of such a character as to prejudice his cause, even if improperly admitted in evidence. The same must be held as to an answer of plaintiff giving a remark that she heard defendant Pearl Clopton make to defendant Hugh on one occasion.

Complaint is made that the court failed to rule on defendants' objection to testimony given by plaintiff as to certain alleged acts of cruelty occurring prior to April 19, 1907, on which day a previous action brought by plaintiff for a divorce on the ground of cruelty was dismissed by her. The court reserved its ruling, receiving the evidence subject to the objection. Apparently it has never formally ruled on this objection, except in so far as a ruling against the objection is to be inferred from the fact that the court has found upon the facts so testified to in favor of plaintiff. The matter must here be regarded as though defendants' objections had been formally overruled and exceptions noted to such rulings. We see no reason to doubt the admissibility of the evidence. The evidence shows very clearly that the dismissal of the former action was by the plaintiff herself, under subdivision 1 of section 581 of the Code of Civil Procedure, without the consent or even knowledge of the defendant, Hoggatt Clopton, and without consideration of any kind from him to her. All this is shown by his own evidence. It consequently was not a bar to another action concerning the matters involved therein. Merritt v. Campbell, 47 Cal. 542, involving a judgment of dismissal based upon and entered in pursuance of an agreement of the parties, is not in point.

To show cruelty on the part of plaintiff, defendants offered in evidence the complaint of plaintiff in such former action, plaintiff objected thereto, and the court reserved its ruling. thereon, receiving it subject to the objection. Defendant Hoggatt Clopton had alleged the filing of this complaint and its contents in his cross-complaint in this action, and the trial court found in favor of said defendant upon such allegations. It is thus apparent that the trial court did in fact receive and consider such evidence so offered by defendants. It further found, however, that the allegations of plaintiff contained in said divorce complaint were true.

In passing, it is proper to say, as has been said before, that the practice of receiving evidence that is objected to, subject

to the objection and without a ruling thereon, is not, except under very exceptional circumstances, to be commended. And where such a course is followed, certainly a ruling should be made prior to the conclusion of the trial and in time to enable the party to fully present his case in the light of such ruling. However, as we have said, we cannot see that any prejudice could have resulted to defendants in this case by reason of the failure of the court to formally rule on the objections specified above.

Complaint is made of a finding of the trial court to the effect that an antenuptial contract executed by plaintiff and Hoggatt Clopton on the day of their marriage, providing, among other things, that in the event that there was no issue of said marriage, the wife should have one fourth of such property as he owned at the time of his death, and that he should have the absolute and exclusive management and control, with power of disposition, of all his property during his lifetime, was fraudulently obtained by said Hoggatt, is not sufficiently sustained by the evidence. This claim is well based, there being absolutely nothing in the evidence from which any such conclusion could reasonably be inferred. But we regard this finding as altogether immaterial, and are unable to see that it prejudices defendants in any way. There is nothing in this contract that purports to relieve the husband from the obligation of supporting and maintaining his wife during the continuance of the proposed marriage relation, and, of course, nothing of that kind was intended by either party. That duty on the part of the husband was in no way affected by the contract. It is settled in this state that, while the wife, merely because of the conjugal relation, has no standing to attack a voluntary disposition of her husband's separate property, for the reason that the fact of marriage gives her no interest therein, nevertheless, where by reason of the conduct of the husband she is entitled to enforce separate maintenance at his hands, she is so far within the protection of the statute invalidating any transfer of property made with intent to delay or defraud "any creditor or other person of his demands" (Civ. Code, sec. 3439), that such statute avoids as to her any transfer made with design to defeat such right. (Murray v. Murray, 115 Cal. 266, [56 Am. St. Rep. 97, 37 L. R. A. 626, 47 Pac. 37].) The extent of this rule has been recognized in

CLXII Cal.-2