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District to restrain the enforcement of an order for payment of alimony pendente lite.

The facts are stated in the opinion of the court.

Alfred H. McAdoo, Duke Stone, and David E. Bergman, for Petitioner.

Griffith Jones, for Respondents.

SHAW, J.-Prohibition. In an action for divorce brought by Charles Eisenring against his wife, petitioner herein, the court, upon application therefor by the husband, made an order requiring the wife, at a time specified therein, to pay the husband suit money and alimony pendente lite. She refused to comply with the order; whereupon she was cited to appear and show cause why she should not be adjudged guilty of contempt.

The contention of petitioner is that this order is void, and hence the court had no jurisdiction to proceed against her as for contempt for failure to comply therewith. We are in full accord with this contention.

Concededly authority to make such order finds no support at common law; hence, if authority therefor exists, it must be by virtue of some statutory provision. Section 137 of the Civil Code provides that "when an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself and her children, or to prosecute or defend the action." Clearly the power of the court under this provision is restricted in the exercise thereof to the wife, and no similar provision is made in favor of the husband. To our minds, this section measures the power of the court in the matter of allowing suit money and alimony pendente lite; and, as said in Hagert v. Templeton, 18 N. D. 525, [25 L. R. A. (N. S.) 234, 123 N. W. 283], "was intended to be exclusive and to embrace the entire subject matter of the allowance of alimony pendente lite." In Groth v. Groth, 69 Ill. App. 68, it is said: "If alimony from a wife to a husband is a proper thing upon circumstances, legislation is necessary to authorize it. . . . The statute gives her-not him-alimony. To give it to him is not to administer existing, but to make new, law." To like effect is Greene v. Greene, 49 Neb. 546, [59 Am. St.

Rep. 560, 34 L. R. A. 110, 68 N. W. 947]; Glynn v. Glynn, 8 N. D. 233, [77 N. W. 594]; Brenger v. Brenger, 142 Wis. 26, [135 Am. St. Rep. 1050, 19 Ann. Cas. 1136, 26 L. R. A. (N. S.) 387, 125 N. W. 109]; Hoagland v. Hoagland, 19 Utah, 103, [57 Pac. 20].

The law contemplates that the husband, save and except in the cases specified in section 176 of the Civil Code, shall support himself out of his property or by his labor. The case of Livingston v. Superior Court, 117 Cal. 633, [38 L. R. A. 175, 49 Pac. 836], cited by respondent, was an action brought under this section to compel the wife to support the husband out of her separate property, and upon a trial thereof and the facts being established that he had no separate property, and, in the absence of community property, being unable through infirmity to support himself, as provided in said section, the court made its order requiring the wife to pay him a specified sum monthly. For such action express statutory authority exists; but neither section 176 nor what is said in the Livingston case supports respondent's contention. The point here made was urged in the case of Hagert v. Templeton, supra, where the court, having before it a similar question and construing like statutory provisions, held that no authority, statutory or otherwise, existed for the making of an order requiring the wife to pay suit money and alimony to the husband pendente lite.

The alternative writ heretofore issued is made permanent.

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

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 December 3, 1917.

[Civ. No. 2419. Second Appellate District.—October 4, 1917.]

WALTER FACUNDAS et al., Petitioners, v. FAY CURTIS, City Clerk, etc., Respondent.

ELECTION LAW-RECALL OF CITY TRUSTEES SUFFICIENCY OF PETITION.— A petition for the recall of city trustees sufficiently complies with the requirements of the act of 1911 (Stats. (Ex Sess.) 1911, p. 128), providing for the recall of elective officers of incorporated cities and towns, where the petition as filed consisted of five sections all fastened together, with each of such sections consisting of three or more sheets fastened together under a separate cover, and each section consisting of a copy of the petition, followed by the signatures, and an affidavit of the person who circulated the petition declaring that he saw written the signatures appended to the petition, and that according to his best information and belief each was the genuine signature of the person whose name purported to be thereunto subscribed.

APPLICATION for a Writ of Mandamus originally made to the District Court of Appeal for the Second Appellate District to compel a city clerk to certify to the sufficiency of a recall petition.

The facts are stated in the opinion of the court.

Edson Abel, for Petitioners.

Emmons & Johnstone, for Respondent.

CONREY, P. J.-This is a proceeding in mandamus to compel the defendant, as city clerk of the city of Taft, to certify the sufficiency of a petition for the recall of two trustees of that city.

The only point urged on behalf of the respondent relates to the form of the recall petition. He claims that the petition does not comply with that portion of the statute which reads as follows: "The signatures to the petition need not all be appended to one paper. . . . Each such separate paper shall have attached thereto an affidavit made by a qualified elector of the city or town, . . . and sworn to before an officer competent to administer oaths, stating that the affiant circulated that particular paper and saw written the signatures appended thereto; and that according to the best information and belief of the affiant, each is the genuine signature of the

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person whose name purports to be thereunto subscribed, and of a qualified elector of the city or town. . . (Stats. (Ex. Sess.) 1911, p. 128; Deering's Gen. Laws (1915 ed.), p. 1219.) The petition as filed consists of five sections, all fastened together. Each of those sections consists of three or more sheets fastened together under a separate cover. Each section consists of a copy of the petition, followed by the signatures. Following the signatures and constituting the last page inside the cover of that section is an affidavit of the person who circulated the same, in which affiant says: "That he is a qualified elector of the city of Taft, county of Kern, state of California; that he personally circulated the within and foregoing petition and saw written the signatures appended thereto; that according to his best information and belief, each is the genuine signature of the person whose name purports to be thereunto subscribed, and of a qualified elector of the city of Taft, county of Kern, state of California."

It is our opinion that the petition as thus prepared and filed sufficiently complies with the foregoing provisions of the statute. This being so, and since it is not denied that the number of signatures is actually sufficient to comply with the requirements of the law, as alleged by the plaintiffs herein, we are satisfied that the peremptory writ should issue, and it is so ordered.

Shaw, J., and James, J., concurred.

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 December 3, 1917.

84 Cal. App. 48

[Civ. No. 2387. Second Appellate District.-October 4, 1917.]

WILLIAM E. BEECHAM, Respondent, v. C. Y. BURNS, City Clerk of the City of Venice, Appellant.

RECALL OF CITY TRUSTEE-SUFFICIENCY OF PETITION.-Names of signers may not be withdrawn after filing of petition.

ID. LOST ELECTION RETURNS SECONDARY EVIDENCE- REFRESHING MEMORY OF WITNESS FROM NEWSPAPER CLIPPING.-In an action to compel a city clerk to certify to the sufficiency of a "recall" petition, the returns which would have shown the number of votes cast at the next preceding city election had been lost. It was held not error to permit the city clerk's predecessor to refresh his memory from a newspaper "clipping" of the results printed from a memorandum which he had made at the time and furnished to the newspaper. APPEAL

ALTERNATIVE METHOD EFFECT OF FAILURE TO PRINT IN BRIEFS PORTIONS OF THE RECORDS RELIED ON.-In this case the record consisted of a typewritten "Clerk's Transcript on Appeal," and a typewritten "Reporter's Transcript on Appeal," prepared as prescribed by section 953a of the Code of Civil Procedure. The court, although it examines and decides the questions presented by the briefs, and affirms the judgment, has no doubt that it might have based its affirmance on the sole ground of the failure of the appellant to print in the briefs the portions of the record desired to be called to the attention of the court as required by section 953c of the Code of Civil Procedure.

APPEAL from a judgment of the Superior Court of Los Angeles County. Curtis D. Wilbur, Judge.

The facts are stated in the opinion of the court.

Fredericks & Hanna, and Charles W. Lyon, for Appellant.

Roy A. Linn, Muhleman & Crump, and William M. Humphreys, for Respondent.

CONREY, P. J.-The record on appeal in this case consists of a typewritten "Clerk's Transcript on Appeal" and a typewritten "Reporter's Transcript on Appeal" prepared in the manner prescribed by section 953a of the Code of Civil Procedure. Upon such a record it is required that the parties "print in their briefs, or in a supplement appended thereto,

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