6. Divorce 27(1)-Mental suffering may be "extreme cruelty." tion of the trial court, in whose exclusive | murrer, and not having been so attacked, must jurisdiction it has been vested by legislative be held sufficient on appeal. enactment. If it is desirable or expedient to settle these matters out of court, such agreements must be subjected to the examination of the court. Loveren v. Loveren, 106 Cal. 509, 513, 39 Pac. 801. If fair and equitable, the arrangement between the parties will no doubt receive its sanction. The order is affirmed. and be the equivalent of extreme cruelty, unGrievous mental suffering may constitute der Civ. Code, § 94. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Extreme Cruelty.] We concur: KNIGHT, Judge pro tem.; 7. Divorce RICHARDS, J. An appeal from order denying motion for new trial is not authorized under Code Civ. Proc. §963, and will be dismissed. 2. Appeal and error 766, 767(1)—Brief not complying with rules may be stricken. Where the opening brief is not typewritten, not indexed, only four copies are filed, and no attempt seems to have been made in its preparation to conform to the requirements of rule S of the appellate court (176 Pac. ix), and instead of calling the attention of the court to certain parts of the record, as directed in Code Civ. Proc. § 953c, contains merely portions of voluminous testimony, without any reference to the transcript, and with but little comment as to the nature and effect of the evidence, the appellate court would be justified in dismissing the appeal or striking brief from the files. 3. Appeal and error 771-Failure of husband to furnish counsel fees and costs no excuse for failing to file brief. 184 (10) What constitutes grievous mental suffering a question of fact not ordinarily reviewable. Whether in any case the course of conduct complained of as a ground for divorce constitutes "grievous mental suffering" is a question of fact on which the trial court's finding will in support thereof is so slight as to indicate not be disturbed on appeal, unless the evidence a want of ordinary good judgment and an abuse of discretion. 8. Contracts 11-Entered into to facilitate divorce void. An agreement entered into between parties with the object of dissolving a marriage contract, or facilitating that result, is void. 9. Husband and wife 278 (1)—May agree to immediate separation and provide for support of either. Under Civ. Code, §§ 158, 159, either husband or wite may enter into any agreement or transaction with the other, or with any other person,, respecting property, which they might if unmarried, and they may agree in writing to immediate separation, and may make provision for the support of either of them, or their children, during such separation. 10. Contracts 11-Agreement to pay attorney fee to wife in anticipated divorce action void. A portion of a separation agreement providing for the payment of an attorney fee to the wife in the event that either of the parties should ever institute a divorce action against the other was void. The fact that a wife is penniless, and that the superior court made an order directing the husband to pay appellant wife sufficient money to enable her to print her brief, and that bus-11. Contracts 137 (3)—Provision for payband appealed from this order and gave a bond staying execution of the order, is no sufficient justification for not filing a proper opening brief. 4. Divorce 93(3)—Not necessary to allege mental suffering was wrongfully inflicted. In order to state a cause of action for divorce on the ground of extreme cruelty under Civ. Code, § 94, it is not necessary to state that grievous mental suffering was "wrongfully" inflicted, where the only rational inference from the allegations of the complaint is that the "infliction" was "wrongful." 5. Pleading 406 (5)-Complaint held suffi. cient on appeal though subject to special demurrer if made. Failure of a complaint in a divorce action, on the ground of extreme cruelty, under Civ. Code, § 94, to state that grievous mental suffering was "wrongfully" inflicted, was a defect which could have been reached by special de ment of attorney fee to wife in event of divorce did not render entire separation agreement void. A portion of a separation agreement providing for the payment of an attorney fee to the wife in event either of the parties should ever institute a divorce action against the other did not render the entire agreement void, relating to a different subject, and being entirely distinet, disconnected, and separable from the valid provisions of the contract. 12. Divorce 249 (2)-Separation agreement considered in regard to disposition of community property. Trial court in a divorce action has unlimited authority to make disposition of community property of the parties, under Civ. Code, §§ 146, 147; and, where it is made to appear that a division of property has been made in a sepa ration agreement, the court necessarily has jurisdiction to consider the instrument, and to (190 P.) affirm it or disregard it, if it is found to be rendered it well-nigh impossible for us to void. use the brief for that purpose. In justifica249 (2)-Trial court held to tion of her failure to print her brief, appelhave ratified agreement as to division of com-lant makes it appear that she is penniless, munity property. 13. Divorce depending for the greater part of her livelihood upon the charity of relatives; that on motion, and after taking evidence, the superior court made its order directing the respondent to pay to appellant sufficient money to enable her to print her brief; that from this order respondent appealed, and that appeal is now pending in this court; that the respondent gave a bond staying the execution of the order, thus completely denying appellant the means wherewith to comply with the rule of the court relative to printing her brief. This statement is borne out by the record, and for this reason we have refrained from dismissing the appeal or striking the brief from the files. There is not, however, sufficient justification for the manner in which the appellant's appeal is presented in the brief. Notwithstanding the labor involved, we have made a complete examination of the record in considering the points made by the appellant in seeking a reversal of the judgment and decree. Defendant denied all the allegations of the Action for divorce by Daniel F. McCahan against Lillian McCahan. From a decree in favor of plaintiff, defendant appeals. Af- complaint, filed a cross-complaint seeking a firmed. See, also, 190 Pac. 458. division of the community property and permanent alimony, and praying that a certain agreement whereby the parties agreed to J. J. Cairns and H. L. Ford, both of live separate and apart from each other, Eureka, for appellant. providing for disposition of their property, Pierce H. Ryan, of Eureka, for respondent. and fixing an attorney fee in the event that WASTE, P. J. [1] Defendant appeals from the judgment granting her husband, the plaintiff, a decree of divorce. She also appeals from the order of the court denying her motion for a new trial. The latter appeal was unauthorized and is dismissed. Code Civ. Proc. § 963. [2] Were it not for the nature of the action and the situation of the appellant, we would feel justified in dismissing this appeal, or striking the opening brief from the files. It is typewritten, not indexed, only four copies were filed, and no attempt seems to have been made in its preparation to conform to the requirements of rule 8 of this court (176 Pac. ix). Instead of calling the attention of the court to certain parts of the record, as provided in section 953c of the Code of Civil Procedure, the brief appears to contain merely those portions of the voluminous testimony considered by the appellant to be favorable to her contentions, without any reference to the transcript, and with but little comment as to the nature and effect of the evidence. an action of divorce should ever be instituted by either of the parties, be declared null and void. The case was tried with a jury, which decided in favor of plaintiff, and against the defendant, on all the special issues submitted to it. These answers were adopted by the court, which made additional findings of its own. The judgment and decree in favor of plaintiff followed, from which defendant appeals. Appellant first attacks the sufficiency of the complaint. The plaintiff charged that the defendant secretly accepted the attentions of a man other than her husband, entertaining him in her home both in the daytime and in the nighttime, always in the absence of her husband; that she accompanied this man, without the knowledge and consent of her husband, to picnics and dances, and associated with him, in the privacy of her own home and in public places, to such an extent that her relations with said man became a matter of common gossip and scandal in the place where the parties resided, all of which became known to plaintiff; that she secreted [3] The failure and neglect of appellant stolen property in the house of plaintiff, and in these particulars has not only oostructed applied vile, insulting names and epithets our examination of the record, but has to him; that she endeavored to strike him For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes with an iron; that she impugned the chastity of his female friends; that she laid down in the public streets, screeching and screaming at the top of her voice; that she frequently threw herself on the floor, remaining there screaming for hours at a time; that she repeatedly threatened to kill and murder her husband; that she frequently threatened suicide, and said she would cut her throat; that she endeavored to get hold of weapons for that purpose; that she quarreled with her husband until late hours of the night; that she attempted to tear out her own hair and to bite plaintiff's hands; that she did all these things and many others without cause or provocation, “all of which caused plaintiff great shame and humiliation, and inflicted upon him grievous mental suffering." [4, 5] Appellant's contention is that, by reason of the failure to state that the grievous mental suffering was "wrongfully" inflicted, the complaint is insufficient to state a cause of action for extreme cruelty, under section 94 of the Civil Code. As was said in Nelson v. Nelson, 18 Cal. App. 602, 605, 123 | Pac. 1099, 1101, "if this does not present a case of the wrongful infliction of grievous mental suffering' we have totally misconceived the language employed." Furthermore, we do not understand that the pleader is required to adopt the exact language of the statute in pleading the cause of action, under the section mentioned. It is sufficient if, by appropriate averments, the proper qualification appears. As was said in the case last noted, the only rational inference from the allegation of the complaint is that the "infliction" was "wrongful." Furthermore, if there was any defect in the complaint it was one which could have been reached by special demurrer, and, not having been so attacked, it must be held to be sufficient. Mayr v. Mayr, 161 Cal. 134, 136, 118 Pac. 546. [6] Appellant contends that the acts charged in the complaint, before summarized by us, even if true, did not constitute cruelty. She places her reliance upon the decision of Waldron v. Waldron, 85 Cal. 257, 24 Pac. 649, 858, 9 L. R. A. 487, wherein it was decided by a divided court that grievous mental suffering is not the equivalent of extreme cruelty, in a legal sense. The rule there laid down was criticized and overruled in Barnes v. Barnes, 95 Cal. 171, 175, 30 Pac. 298, 16 L. R. A. 660. The more rational rule laid down in that case has been universally and consistently followed in this state ever since. Fleming v. Fleming, 95 Cal. 430, 434, 30 Pac. 566, 29 Am. St. Rep. 124; Andrews v. Andrews, 120 Cal. 184, 187, 52 Pac. 298; Smith v. Smith, 124 Cal. 651, 652, 57 Pac. 573; Maloof v. Maloof, 175 Cal. 571, 573, 166 Pac. 330. view the voluminous record of the evidence of some 30 witnesses who testified for the opposing side. No good can be effected by doing so, for the most that the appellant can urge in support of her contention that the findings and judgment are not sustained by the evidence is a conflict of testimony arising for the most part in the respective stories told by the plaintiff and the defendant. Whether in any case the course of conduct complained of constitutes "grievous mental suffering” is a question of fact. “The judge who tries the action, and has the parties before him for observation in the light of the evidence, is the one to whom the law commits the determination of this question in the first instance; and, as was said in Andrews v. Andrews, 120 Cal. 187, 52 Pac. 298, this court will not disturb a finding that particular acts constitute grievous mental suffering unless the evidence in support of the finding is so slight as to indicate a want of ordinary good judgment and an abuse of discretion by the trial court.'" Avery v. Avery, 148 Cal. 239, 244, 82 Pac. 967, 969; McDonald v. McDonald, 155 Cal. 665, 670, 102 Pac. 927, 25 L. R. A. (N. S.) 45; Dupes v. Dupes, 184 Pac. 425. We are fully satisfied that the conclusions of the trial court as to the weight and sufficiency of the evidence to support the allegations of the complaint, and the decree of divorce entered thereon, are correct. Appellant sought at the trial to avoid the legal effect of the separation agreement entered into between herself and husband upon the ground that it was procured by undue influence. By this contract the parties agreed to live separate and apart, divided their property, provided for the custody and education of the minor child of the parties, stipulated an amount to be paid monthly for the support and maintenance of the defendant and the child, and relinquished to each other all obligations growing out of their marital relations, except as in the contract provided, including the right to inherit one from the other. The agreement also provided for an attorney fee of $100 "in the event that any action for divorce shall ever be instituted between the parties." This stipulation of the contract imposed no obligation on the wife to sue for a divorce; and the making of the contract was followed by the actual separation of the parties, during which the plaintiff paid the defendant the sum of $22.50 a month as therein provided for the support of herself and child. The agreement awarded what little community property the parties had to the defendant. The plaintiff, a laborer, has no separate property other than an interest in certain land, which is subject to the life estate of his mother, and which was found by the court to be worth (190 P.) From the evidence it appears, and the action against the other, is void (McCahan v. court so found, that prior to the execution McCahan, 190 Pac. 458, No. 3320, this day of the agreement the plaintiff and defendant decided), it relates to a different subject, and had discussed between themselves the sub-is entirely distinct, disconnected, and sepaject of the contract which it was proposed rable from, and does not invalidate, the valid by them to enter into, and agreed upon prac- provisions of the contract. Estate of Sloan, tically all of its terms. On the date of its 179 Cal. 393-397, 177 Pac. 150; Mack v. Jasexecution the plaintiff and the defendant tro, 126 Cal. 130, 134, 58 Pac. 372; Beard v. went together to the office of the attorney Beard, 65 Cal. 354, 356, 4 Pac. 229. whom the plaintiff had selected, and stated [12, 13] The trial court, having jurisdiction to him, both parties being present, the terms of the divorce action, had unlimited authorwhich they had agreed upon. In the after-ity to make disposition of the community noon of the same day they returned to the property of the parties. Civ. Code, §§ 146, office of the attorney, who in the meantime 147. Whenever, therefore, it was made to aphad drafted the agreement. He read it pear that a division of the property had been aloud to the parties, explaining the various made in accordance with the terms of the provisions and terms and stating their mean- separation agreement, the court necessarily ing to them. Before the document was had jurisdiction to consider the instrument, signed the defendant was instructed and ad- and to affirm it, or to disregard it if it was vised by the attorney that she had the right found to be void. "Such pretended agreeto consult her own attorney or adviser, but ments, if they are to have any force, must be she declined to do so. Prior to signing the subjected to the examination of the divorce agreement, however, she telephoned to a rep-court, and derive their sanction from a deutable and competent attorney of Eureka, cree made by the court with a knowledge of who later appeared for her and represented the facts." Loveren v. Loveren, 106 Cal. 509, her in this action. During the conversation 513, 39 Pac. 801, 802. The court, in the inwith him she stated she did not desire his stant case, in its decree made no division of aid or advice in the matter of the agree- the property of the parties, or provision for ment. The evidence fails to disclose that the support of the defendant, but did recogthe defendant was in any way coerced or nize and expressly reserve to her the power induced by any means against her will to to assert such rights and benefits as might accrue to her under the previously executed articles of separation. This action on its part we construe to be a ratification of the agree enter into the contract. [8-11] There is no evidence that the agreement was entered into between the parties with the object of dissolving the marriage contract or facilitating that result. Such contracts are void. Newman v. Freitas, 129 Cal. 283, 289, 61 Pac. 907, 50 L. R. A. 548. Under our Code either husband or wife may enter into any agreement or transaction with the other, or with any other person, respecting property, which they might if unmarried. Civ. Code, § 158. They may also agree in writing to immediate separation, and may make provision for the support of either of them, and of their children during such separation. Civ. Code, § 159. The agreement in question was apparently drawn pursuant to the authority thus given, and was one which the parties had the right to enter into. Pereira v. Pereira, 156 Cal. 1, 4, 103 Pac. 488, 23 L. R. A. (N. S.) 880, 134 Am. St. Rep. 107; Walker v. Walker, 14 Cal. App. 487, 493, 112 Pac. 479. Although that portion of the agreement, providing for the payment of an attorney fee to the wife, in the event that either of the parties should ever institute a divorce ment to that extent. [14] Measured by the standard of the Code provisions, and construed in the light of the circumstances surrounding its execution and subsequent performance, it is manifest that, in so far as it deals with the property rights of the parties, the contract is a valid agreement with which the court could not interfere, unless from the evidence it was authorized to find that it was procured in violation of the general rules which control the actions of persons occupying confidential relations with each other. It did not so find. Being fairly made, and not being obtained by coercion, intimidation, or undue influence, the trial court was correct in refusing to vacate and set it aside. Murray v. Murray, 28 Cal. App. 533, 535, 153 Pac. 248. The judgment is affirmed. (47 Cal. App. 319) Loryea, 81 Cal. 151, 22 Pac. 513, and cases (Civ. 3007.) cited therein. Moreover, appellant here nec(District Court of Appeal, Second District, Di-essarily confirmed that view, and respondent vision 1, California. May 3, 1920.) concedes that the law is so established. A contract is presumed to be payable where made, in the absence of terms providing otherwise. Tuller v. Arnold, 93 Cal. 168, 28 Pac. 863. The bald question then for determination is as to whether a contract made in another state, and which contains no terms providing that payment shall be made in this state, is such a contract as authorizes an attachment to issue in an action brought here. The answer must be in the negative. It has been directly so held. Dulton v. Shel ton, 3 Cal. 206; Eck v. Hoffman, 55 Cal. 502: Appeal from Superior Court, Los Angeles Tuller v. Arnold, supra. The cause of action, County; Grant Jackson, Judge. therefore, as shown, was not based upon a contract made or payable in California, and hence no attachment was authorized to be Action by Mary Erickson against O. S. Erickson. From an order dissolving plaintiff's attachment, the plaintiff appeals. Af-issued therein. The Oregon case cited by ap firmed. Emmet H. Wilson, of Los Angeles, for appellant. C. W. Benshoof, of Riverside, for respondent. JAMES, J. Appeal from an order dissolving an attachment issued at the instance of the plaintiff. The action was brought in the superior court of the county of Los Angeles and the cause of action stated was upon liability created by a judgment which judgment | was entered against defendant in the state of Washington. Plaintiff, as a prerequisite to the issuance of the attachment, made her affidavit in which she alleged that Her claim was "for money due, owing, and unpaid on account of judgment rendered in favor of the plaintiff and against the defendant, and that such contract was made and is payable in this state. * * " pellant (Meyer v. Brooks et ux., 29 Or. 203, 44 Pac. 281, 54 Am. St. Rep. 790) was evidently decided under a statute different in terms from those of our section 537, Code of Civil Procedure. The order appealed from is affirmed. We concur: CONREY, P. J.; SHAW, J. (47 Cal. App. 208) SHERMAN v. SHERMAN. (Civ. 3358.) (District Court of Appeal, First District, Division 2, California. April 23, 1920.) 1. Appeal and error 932(I)-That motion for allowance of counsel fees was made in action for separate maintenance held presumed. On appeal from default judgment for sepa rate maintenance, where no findings were necessary and no bill of exceptions was presented, it will be presumed, to sustain that portion of the judgment awarding counsel fees, that plaintiff proceeded in the customary manner by mov ance evidenced by the final judgment cannot be Section 537, Code of Civil Procedure, permits attachment to be issued in an action upon a contract, express or implied, for the direct payment of money, "where the contracting for counsel fees before trial and the allowis made or is payable in this state." As to whether a judgment in any clear sense constitutes a contract is open to debate. English writers on the common law decline to give it that general character because, for one thing, a judgment in contested cases lacks the essential of consent of the party to be bound. However, judgments were sometimes classified as "contracts of record" upWhile under Civ. Code, § 137, as amended on the assumption that a promise would be in 1917 (St. 1917, p. 35), the court may, in an implied in law on the part of the judgment action for maintenance alone, make the same debtor to pay the amount adjudged to be due disposition of the community as could have from him. A diversity of opinion is to be been made if the marriage had been dissolved, found in the decisions on the question. How- but such award can be sustained only on the theory that it is necessary and reasonable; ever, the Supreme Court of this state has hence, where the complaint did not seek such affirmed the position that a suit upon a judg-relief, but alleged that the defendant husband ment is an action upon contract. Bean v. was receiving a salary of $200 per month, and |