Page:North Dakota Reports (vol. 48).pdf/268

 Robinson, 146 App. Div. 533; 131 N. Y. S. 261; Warring v. Warring, 1oc N. Y. 221; Palmer v. Palmer, 29 How. Prac. (N. Y.) 390; Douglas v. Douglas, 5 Hun. (N. Y.) 143.

Norton & Kelsch, for respondent.

, J. This is an appeal upon the judgment roll in an action for divorce. The plaintiff, the husband, in his complaint alleged that the parties were married on May 8, 1920, and that shortly after the marriage the defendant, upon numerous occasions, treated the plaintiff in a cruel and inhuman manner, and has since pursued a course of conduct towards him that caused grievous bodily pain and mental suffering. The answer denies these allegations of grounds for divorce, and for a cross-complaint alleges that the plaintiff, shortly after the marriage, commenced a course of cruel treatment towards the defendant, and that the plaintiff—

“for the past six months has wilfullywillfully [sic] neglected and refused to provide for this defendant with the common necessities of life, having the ability so to do, and has compelled this plaintiff to live upon the charity of friends and her own labor, notwithstanding his ability to support this defendant, and that he is worth, as this defendant is informed and believes, the sum of $20,000.”

The answer concludes with a prayer for divorce and permanent ali- mony. At the conclusion of the trial in the district court the following findings, among others, were made:

“III. The court finds, as a matter of fact, from all of the evidence and the record in said cause that both parties to said action have failed to prove by competent evidence the existence of any ground to entitle either party to a divorce.

“TV. That the plaintiff is the owner of 317 acres of real estate and also 6 lots with a dwelling house situated thereon in the city of Mandan, which said property is of the reasonable value of $10,000, which is free from all incumbrances whatsoever ; that the plaintiff has failed to properly furnish and equip the residence of said parties, and has failed and neglected to properly provide and care for the defendant herein with the necessities of life, notwithstanding the fact that he is well able so to do.

“V. That the plaintiff has paid the sum of $50 to the defendant upon the order awarding temporary allowance, but has failed and neglected to pay the amount awarded to the defendant as temporary alimony by order of the court, which is on file in said cause, and that there is due to the de-