necessaries of life for and during the year immediately preceding the filing herein of her cross-complaint, and that the plaintiff had been guilty of extreme cruelty toward her in divers ways and on numerous occasions, such acts of cruelty being specifically set out.

The plaintiff made answer to the cross-complaint.

No evidence was offered in support of the defendant's plea of res adjudicata.

The court made no findings upon the causes of action for desertion and failure to provide set up in the defendant's cross-complaint. It did, however, in substance find as to the cause of action therein stated involving the charge of extreme cruelty, that the plaintiff for and during the course of a number of years prior to the date of the institution of this action by the plaintiff and cross-defendant, on numerous occasions, and often in the presence of other persons, had called the defendant and cross-complainant vile and, indeed, unprintable names; that he, during that time, told other people, in her absence, that she was an immoral woman, and that the persons to whom he so spoke of her had communicated to her the fact of his denunciation of her in the manner indicated; that, without cause or provocation therefor, he attempted to strike her on one occasion, and but for the interference and protection she received at the hands of a Mr. Ellis, who was then present, he would have struck and inflicted upon her serious bodily injury; that on said occasion he, in the presence of strangers, called her a liar, a thief, and a fool, and said she was not a moral or respectable or virtuous woman, and asseverated "that he would not live with said. Gerda Benson again, even if she begged him to allow her to live with him"; that for many years he had kept up a continuous abuse of the defendant and cross-complainant of a character which made it impossible for her to live in peace or happiness with him.

There is no claim here that the evidence does not support the allegations of cruelty of the cross-complaint or the findings upon which the judgment is planted. It is contended, however: 1. That each and all of the matters set up by the defendant in the several counts of her cross-complaint were made issues by the respective pleadings in the former divorce action between the parties, and were adjudicated by the judgment therein, whereby the court denied to both of the

parties the relief prayed for in their complaint and crosscomplaint, respectively, filed in said action, and dismissed the said action and all the proceedings therein. 2. That the court erred to the serious detriment of the rights of the plaintiff by refusing to allow certain testimony to be received. 3. That the allowance for the support of the minor children is too large, and not justified.

There are two conclusive answers to the first of the propositions above stated: 1. That the plaintiff, in his answer to the cross-complaint of the defendant, did not plead the former judgment, nor was there proof thereof offered or received under the plea of estoppel based upon said judgment set up by the defendant in her answer to the complaint. The judgment-roll in said former action was not introduced in evidence by either party, and the defendant having merely pleaded in her answer the cross-complaint of the plaintiff here (defendant there) and the judgment in said action, there is nothing in the record disclosing the grounds upon which the defendant here as plaintiff in the former action relied for a divorce. 2. It appears that the acts of cruelty charged in the cross-complaint of the defendant in the present action occurred after the judgment in the former action was rendered and entered, and in such case, of course, the plea of res adjudicata cannot be maintained. There is nothing said. in Civille v. Civille, 22 Cal. App. 707, [136 Pac. 503], cited by appellant, in conflict with this declaration.

Counsel for the plaintiff asked the defendant on crossexamination the following question, to which objection was made by the defendant and sustained by the court: "Are you willing to go back to Mr. Benson and live with him?" It is here urged that the ruling was error and prejudicial. Of course, if a reply to the question had been allowed, and the defendant had answered in the affirmative, it might have had some tendency to weaken her testimony as to the nature and extent of the acts of cruelty of which she said her husband had been guilty. But, having given testimony in the most emphatic manner of outrageous acts of cruelty habitually inflicted upon her by the plaintiff for many years prior to the filing of her cross-complaint in this action, it is more than probable that the defendant would not have answered the question in the affirmative, as evidently counsel desired might be the answer. But, however that may be, we do not

think that the ruling, even if not strictly correct, should be held to afford a sufficient reason for sending the cause back for retrial, particularly since it appears to be true that both parties have persistently been engaged in an effort to get rid of each other as husband and wife upon what appears to be sufficient reason.

As to the last of the propositions above stated, it is said that "the allowance to the wife is out of all proportion to the financial status of the parties.'

The allowance was not made to the wife, but solely to and for the support and maintenance of the minor children of the parties. The amount allowed for that purpose to each of said children is fifteen dollars or a total of forty-five dollars per month. The evidence showed that the plaintiff is a carpenter and building contractor, earns good wages, and is usually employed. We cannot say that the allowance is unreasonable as to the plaintiff or beyond what may be reasonably required to support and maintain the children in a manner consistent with the plaintiff's circumstances and earning ability.

No other points are raised.

The judgment is affirmed.

Chipman, P. J., and Burnett, J., concurred.

[Civ. No. 1390. Second Appellate District.-November 22, 1915.] S. W. KEISER, Respondent, v. J. H. LEVERING, Appellant.

CLAIM AND DELIVERY-PLEADING-VALUE OF PROPERTY.-A complaint in an action to recover the possession of mortgaged personal property, which contains no allegation showing the value of the demanded property other than that contained in a copy of the mortgage attached to the complaint, which purports to give the value of some of the mortgaged articles, is insufficient, as an allegation of value at the time of filing the complaint.

ID.-RECITALS IN CONTRACT-INSUFFICIENT PLEADING.-Recitals in a contract incorporated in a complaint will not supply the want of essential averments in the pleading.

ID. JUDGMENT FOR VALUE OF PROPERTY-EXCESS OF INDEBTEDNESS.In such an action a judgment for the possession of all the mortgaged property or for its value in case delivery thereof cannot be had is excessive, where the indebtedness for security of which the property was mortgaged does not amount to one-half of such value. ID.-JUDGMENT-ALTERNATIVE FORM.-In an action to recover the possession of personal property, while the judgment must ordinarily be in the alternative, yet a judgment that is not in that form is not void, and whether or not it is even erroneous must depend upon the facts of the particular case.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. John M. York, Judge.

The facts are stated in the opinion of the court.

Harry L. Dearing, and T. C. Gould, for Appellant.

A. C. Galloway, Wm. L. Jarrott, and James S. Jarrott, for Respondent.

CONREY, P. J.-This is an action to recover possession of personal property. From a judgment in favor of the plaintiff, and from an order denying defendant's motion for a new trial, the defendant appeals.

By the first count of the complaint it appears that the defendant made to the plaintiff a chattel mortgage securing a note on which there was due at the time of filing the complaint the sum of $835. The mortgage contained the usual provision entitling plaintiff to possession of the property, with right of sale to satisfy his claim whenever default should be made on the defendant's obligation. The facts of such default and of demand for possession and of refusal by the defendant are alleged, which the plaintiff averred are to his damage in the sum of $835. Defendant demurred separately to each count of the complaint on the general ground as to cach count that it did not state facts sufficient to constitute a cause of action, and also on special grounds which we need. not discuss. The demurrer was overruled, and answer filed. In support of the general demurrer, defendant contends that the first count does not contain any allegations showing the value of the demanded property, and claims that an allegation of such value is essential to the cause of action. The

plaintiff in this first count alleges the execution of the mortgage, a copy of which is attached to the complaint, "and made a part hereof to all intents and purposes the same as if recited at length herein." The schedule of mortgaged articles as set forth in the mortgage purports to give the value of some of those articles. Allowing this as an allegation of value, it would only specify the values at the date of the mortgage and not as of the time of filing the complaint, unless we could assume that such values continued unchanged. It is settled law that recitals in a contract incorporated in a complaint will not supply the want of essential averments in the pleading. Thus, where the complaint alleged the making of a note set forth by copy and the note recited that it was "secured by mortgage of even date herewith," it was held that this did not amount to an averment that the note was secured by mortgage. (Hibernia Savings & Loan Society v. Thornton, 117 Cal. 481, [49 Pac. 573]; Hayt v. Bentel, 164 Cal. 681, 686, [130 Pac. 432].)

The contention that a statement of value of personal property in an action to recover possession thereof is essential to the cause of action seems to be based upon the fact that in such action judgment for the plaintiff may be for the possession, or the value thereof in case delivery cannot be had, and damages for the detention. (Code Civ. Proc., sec. 667.) In the earlier cases it was held to be imperative that the judgment be in the alternative form, and such judgments for possession only, without providing for a recovery of the value thereof in case delivery could not be had, were reversed even at the instance of the defendant. (Berson v. Nunan, 63 Cal. 550; Stewart v. Taylor, 68 Cal. 5, [8 Pac. 605]; and other cases.) But this rule was seriously questioned in Claudius v. Aguirre, 89 Cal. 501, 506, [26 Pac. 1077], and Erreca v. Meyer, 142 Cal. 308, 310, [75 Pac. 826]. The law seems to be that, while the judgment must ordinarily be in the alternative, yet "a judgment that is not in the alternative is not, however, void, and whether or not such a judgment is even erroneous must depend upon the facts of the particular case." These later decisions might be sufficient to support a complaint and judgment for mere possession of property without regard to the value thereof, if the case as a whole appeared to be within the jurisdiction of the court; but could not possibly support a judgment for the value as