and also requiring said parties to show cause why they should not be adjudged guilty of contempt for having applied for said order and, pursuant thereto, withdrawn said money from the treasury of Los Angeles County.

The contention of appellant is that the order staying execution did not begin to run until the entry of judgment on December 15th. This for the reason that prior to such time no execution could have issued. Such, in our opinion, is not the legal effect of the order. As we construe it, the ten-day order staying execution commenced to run from its date, to wit, December 12th, and expired on December 22d. On December 23d, when the order for the withdrawal of the funds and payment thereof to William Edward Garrett was made, no appeal had been taken and the time of the stay of execution had expired; hence the court had authority to make the order upon which the money was withdrawn and applied in payment of an existing judgment as to which at the time no appeal had been perfected. In our opinion, the fact that the court, after the money had been paid over in satisfaction of the judgment, vacated and set aside the order upon which it was paid could not vest this court with jurisdiction to order the restoration of the fund. The rule in such cases, as we understand it, is "that a party obtaining through a judgment before reversal any advantage or benefit must restore the amount he got to the other party after the reversal." (Reynolds v. Harris, 14 Cal. 680, [76 Am. Dec. 459]; sec. 957, Code Civ. Proc.; Bank of United States v. Bank of Washington, 6 Pet. 19, [8 L. Ed. 299]. See, also, Patterson v. Keeney, 165 Cal. 465, [Ann. Cas. 1914D, 232, 132 Pac. 1043].) But conceding without deciding that the trial court could have ordered the fund restored, no such order was made.

Our conclusion is that the respondent's motion to dismiss the appeal should be denied; that appellant's motion to have the fund restored and to cite the parties to show cause why they should not be adjudged guilty of contempt for applying for the order pursuant to which the fund was paid should likewise be denied; that the judgment appealed from should be reversed and the trial court instructed to enter judgment upon the findings for the plaintiff and cross-defendant Iva L. Garrett; all of which is so ordered.

Conrey, P. J., and James, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on August 28, 1916, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 25, 1916.

[Civ. No. 1996. Second Appellate District.-July 29, 1916.]

F. A. BRODE et al., Appellants, v. S. A. D. CLARK, Respondent.

APPEAL GENERAL ORDER GRANTING NEW TRIAL-CONFLICTING EVIDENCE. Where the evidence is conflicting as to material matters, an order granting a new trial will be affirmed on appeal, notwithstanding the written order of court contains a statement of what purports to be the reasons influencing the court in granting the motion, where the order is such as to require it to be treated as a general one, the court not having expressly limited it to definite grounds, and the grounds of motion having included the one of the insufficiency of the evidence.

APPEAL from an order of the Superior Court of Los Angeles County granting a new trial. J. P. Wood, Judge.

The facts are stated in the opinion of the court.

P. W. Thomson, for Appellants.

Hammack & Hammack, for Respondent.

JAMES, J.-This appeal is taken from an order granting to the defendant a new trial. The notice of appeal specifies that the appeal was taken from an order entered on the eleventh day of September, 1913. There appears not to have been any formal minute order entered, but the court filed a written order which, after directing that a new trial be granted, set out certain argument, evidently the opinion of the court, upon one question of law involved in the case. The motion for a new trial was made upon various grounds, including that of the insufficiency of the evidence to sustain the findings of the court. It appears that there was contradictory evidence as to certain issues presented. Notwithstanding

that the written order of court contains a statement of what purports to be the reasons influencing the court in granting the motion, we think the order must be treated as a general one, and that it must be assumed in that case that the court, not having expressly limited its order to other definite grounds, may have granted the motion because of the insufficiency of the evidence. The evidence presenting a conflict as to material matters, this court has no function to review the action of the trial judge.

The ground might also be urged, although we find no suggestion of it here on behalf of respondent, that the notice of appeal does not on its face, by specifying the eleventh day of September, 1913, as the date of the entry of the order granting a new trial, point to the order as shown by the record which appears to have been filed on October 20, 1913. However, for the reasons first stated, the order should be affirmed. The order is affirmed.

Conrey, P. J., and Shaw, J., concurred.

[Civ. No. 1507. Third Appellate District.-July 31, 1916.]

REBECCA BROWN, Respondent, v. D. J. CANTY, Appellant.

APPEAL JUDGMENT-ROLL-ORDERS NOT INCORPORATED IN BILL OF ExCEPTIONS-REVIEW NOT PERMITTED.-Upon an appeal taken from a judgment in an action to quiet title upon the judgment-roll without any bill of exceptions or statement of the case, the appellate court can only consider such papers and orders as are declared by the code to constitute a part of the judgment-roll, notwithstanding included in the transcript there are certain exhibits and orders upon which reliance is made for a reversal of the judgment.

APPEAL from a judgment of the Superior Court of Fresno County. George E. Church, Judge.

The facts are stated in the opinion of the court.

E. A. Williams, for Appellant.

Burns & Watkins, for Respondent.

ELLISON, J., pro tem.-Plaintiff brought this action to quiet her title to a quarter-section of land in Fresno County.

Her complaint alleged facts showing the legal title to the land to be in her. The defendant, for answer, denied plaintiff's title. He then alleged a certain contract entered into between him and certain other parties, viz., J. E. Hughes, T. E. Braly, and W. J. Hotchkiss, the result of which was that Hotchkiss had purchased the land described in the complaint from the state of California, but had the state make its deed to one Barthold, in trust for said Hotchkiss and this defendant; that plaintiff had full knowledge of defendant's interest in said land at the time she purchased it from Hotchkiss, to whom Barthold had deeded it. He alleged his interest in the land was an undivided four-tenths, and that notwithstanding plaintiff had knowledge of his claim and interest, she obtained a deed from said Hotchkiss and said Barthold conveying to her said quarter-section of land. Judgment went for the plaintiff and the defendant appeals from the judgment without any bill of exceptions or statement.

The complaint states a cause of action and the findings support the judgment.

The only points relied upon for a reversal are: (1) That defendant having introduced in evidence a lis pendens filed in an action entitled Canty v. Hotchkiss stating defendant's right therein to this same land, (2) this was notice to Mrs. Brown and to the court that defendant claimed an interest in the land and that the plaintiff knew of his claim when she bought the land from Hotchkiss; and this all being true, (3) the court erred in denying defendant's motion to compel Hotchkiss and Barthold to intervene herein in order that the judgment might bind all parties interested in the land, and (4) that no valid judgment could be entered without their presence. But, unfortunately for appellant, the court is unable upon this record to consider any of these suggested matters. Upon this appeal we may only consider such papers and orders as are declared by the code to constitute a part of the judgment-roll. None of the evidence introduced upon the trial by either party is a part of the judgment-roll. Therefore, we do not know what evidence the plaintiff introduced, we do not know that defendant introduced the lis pendens referred to nor that he made any proof of the existence of the contract set up in his answer, nor that he made any motion for an order that Hotchkiss and Barthold be compelled to intervene (see Code Civ. Proc., sec. 387), nor that the court

denied any such motion. It is true there are certain exhibits and orders printed in the transcript, but they have no place therein, not being any part of the judgment-roll.

This is so thoroughly settled that a citation of authority is unnecessary, but one case will be referred to. In Pedrorena v. Hotchkiss, 95 Cal. 636, 638, [30 Pac. 787, 788], it is said: "There are two minute orders printed in the transcript, from one of which it appears that the default was set aside and defendant allowed to answer upon certain stated conditions, and from the other, that the answer filed was stricken out, because defendant had failed to comply with the conditions upon which the default was set aside, and he was permitted to answer. The statute does not make these minute orders part of the judgment-roll. (Code Civ. Proc., sec. 670.) They are, therefore, improperly in the record-there being no bill of exceptions and we cannot notice the points attempted to be made in regard to them." The judgment is affirmed.

Chipman, P. J., and Hart, J., concurred.

[Civ. No. 1517. Third Appellate District.-July 31, 1916.] THOMAS THOMSEN, Respondent, v. IDA AMELIA THOMSEN, Appellant.

DIVORCE ASSIGNMENT OF COMMUNITY PROPERTY-DISCRETION.-In actions for divorce on the ground of adultery or extreme cruelty, subdivision 1 of section 146 of the Civil Code confers upon the trial court a wide latitude for the exercise of its judgment and discretion in assigning the community property to the respective parties, and in every case it will be presumed that such discretion has been wisely and properly exercised.

ID.-CRUELTY OF WIFE-AWARD OF MORE THAN ONE-HALF OF COMMUNITY

PROPERTY TO HUSBAND-DISCRETION NOT ABUSED.-In an action for divorce wherein the decree is granted to the husband on the ground of extreme cruelty, there is no abuse of discretion in awarding to the husband more than one-half of the community property, notwithstanding the wife has been a hard-working woman and by her efforts has assisted in accumulating the property, as her cruelty must be taken into consideration in making the award.

ID.-ANTENUPTIAL HOLDINGS OF HUSBAND-CONSIDERATION IN AWARDING COMMUNITY PROPERTY.-Where a divorce is granted to the husband