fixed at two years, and we are not advised of any charter provision which at all changes it.

As to whether under the constitutional provisions authorizing the framing of county charters the members of the probation committee are properly classified in the charter as county officers, is not decided.

Peremptory writ of mandate will issue as prayed for in the petition.

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

[Civ. No. 1750. Second Appellate District.-May 12, 1915.] PETREA MARIA HANSEN, Respondent, v. HANS PETER HANSEN, Appellant.

DIVORCE-WILLFUL NEGLECT SUFFICIENCY OF EVIDENCE.-In this action for divorce upon the ground of defendant's willful neglect and failure to provide, it is held that the evidence was sufficient to support the findings in favor of the plaintiff, although she was supported in part by her earnings and in part by the charity of friends.

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Munroe, Judge.

The facts are stated in the opinion of the court.

E. M. Barnes, for Appellant.

Roy V. Reppy, for Respondent.

SHAW, J.-Action for divorce upon the ground of willful neglect and failure to provide.

Defendant answered denying the allegations of the complaint, and filed a cross-complaint alleging grounds upon which he asked for a decree of divorce.

The court found the allegations of the cross-complaint to be untrue, and found that for more than one year prior to the filing of the complaint defendant, by reason of his idleness, willfully neglected to provide for plaintiff the common necessities of life. An interlocutory decree in favor of plaintiff

27 Cal. App.-26

followed, from which defendant appeals, adopting the alternative method in bringing up the record.

The only question presented which merits attention is the sufficiency of the evidence to justify the finding in favor of plaintiff. The evidence fairly tends to show that defendant, for more than a year prior to the commencement of the action, was a man some forty years of age, in good, health, having a family consisting of his wife, the plaintiff herein, and young son; that during said time he was unemployed and earned no money whatsoever; that plaintiff engaged in embroidering monograms and other like work when she could obtain it, earning some forty dollars or fifty dollars per month; that such sum was inadequate for the support of herself and son, both of whom, on account of defendant's neglect and her own inability to earn more, were dependent upon the generosity of charitable ladies for donations of necessities to enable them to live. The son corroborated this evidence by testifying that his clothing, consisting of undershirts, shirts, shoes, trousers, and coats, were given to him as a matter of charity by ladies with whom his mother was acquainted. The wife's earnings were community funds the same as though they were the result of the husband's honest labor; hence, if her earnings were sufficient to provide the common necessities of life for herself and son, while the husband lived in idleness, she would have no legal ground for complaint. While such rule seems harsh, nevertheless it is the law. (Washburn v. Washburn, 9 Cal. 476; Rycraft v. Rycraft, 42 Cal. 445; Locke v. Locke, 153 Cal. 56. [94 Pac. 244].) The evidence, both in chief and as to corroboration thereof, is meager; nevertheless we cannot say it is insufficient to support the finding attacked. In part at least, plaintiff was dependent upon the charity of friends for the common necessities of life.

The judgment is affirmed.

Conrey, P. J., concurred.

JAMES, J., concurring.-I concur in the judgment for the reason, as stated, that there was sufficient evidence upon which to warrant a decree of divorce being awarded to the plaintiff. I am not willing to concur in the statement made unreservedly in the foregoing opinion that where the wife's earnings are sufficient to provide her with the common necessaries of life

she will have no cause for divorce against an able, though idle, husband. Giving this declaration the full effect which its statement imports, a wife who is refused support by an able bodied husband who does not work only because he wills not to, must actually starve or receive support from charity before she is entitled to the benefit of the law designed to give her freedom from her worthless mate. If she is driven, in order to gain the bare necessities, to work, then she must renounce the right to pursue the remedy for divorce, and, moreover, the law will with great irony say to her that even what she then earns is community property within the control of the husband and which he may take away from her-or perhaps divide. In my view, no such a situation was contemplated by the statutes. Primarily it is the husband's duty to support the wife and family. The code provides that where this duty is neglected, third persons may furnish the support on the husband's credit, if they are willing to trust to his ability to respond, and then collect from him. Section 105 of the Civil Code, defines willful neglect such as will furnish a cause of action for divorce, as being the neglect of the husband to provide the wife with the common necessities of life, he having the ability so to do. Surely it cannot be contemplated that the wife must support both herself and a shiftless and idle husband, if she chooses to work rather than to beg; and that only by depending upon the charity of friends can she supply a condition of proof entitling her to a decree of divorce,

[Civ. No. 1708. Second Appellate District.-May 13, 1915.] W. A. TROW et al., Respondents, v. H. L. MOODY, as City Auditor of the City of San Diego, Appellant.

PUBLIC OFFICERS GARNISHMENT OF MONEY DUE TO FILING TRANSCRIPT OF JUDGMENT WITH CONTROLLER OR AUDITOR-CONSTRUCTION OF SECTION 710 CODE CIVIL PROCEDURE.-The enactment of section 710 of the Code of Civil Procedure which provides for the filing of a duly authenticated transcript of a judgment for money with the controller of the state or auditor of the county from which money is due to a judgment debtor, for the purpose of intercepting said money, is a valid exercise of legislative power and the filing of such transcript of judgment operates as a garnishment.

ID.-COMPLIANCE WITH STATUTE-MANDAMUS.-Mandamus is held to be the proper remedy in the case where there is a refusal to follow the direction of said statute.

ID. GARNISHMENT MONEY NOT PAYABLE.-The ordinary rule as applicable to garnishment applies to such a case, which is that a garnishment will impound a debt even though the time of payment has not arrived.

ID. ASSIGNMENT OF SALARY OF PUBLIC OFFICER-INVALIDITY OF.-The rule is well established that, for considerations of public policy, a public official is not permitted to make an assignment of his wages or salary until the time arrives when he is entitled to collect them, or at least not until they have been completely earned, and the rule has been extended so far as to prohibit such assignments being made of fractional parts of a monthly salary.

APPEAL from a judgment of the Superior Court of San Diego County. T. L. Lewis, Judge.

The facts are stated in the opinion of the court.

T. B. Cosgrove, City Attorney, for Appellant.

Liggett & Liggett, for Respondents.

JAMES, J.-Mandate to require appellant as auditor of the city of San Diego to issue his warrant in favor of the justice's court for San Diego township in the amount of $63.69. Judgment was in favor of petitioners after demurrer to the answer had been sustained. An appeal taken from that judgment is presented upon the judgment-roll.

By the admitted allegations of the petition it was shown that one George T. Rogers during the month of November, 1914, was the chief deputy treasurer of the city of San Diego, receiving as compensation for his services a monthly salary of one hundred and sixty dollars; that a judgment was obtained against him and other defendants in the justice's court of San Diego township, and that a transcript thereof was filed with appellant auditor on the twenty-eighth day of November, 1914, together with an affidavit made on behalf of the plaintiffs in that action showing that there was then due and unpaid on account of the judgment $63.69, and giving notice to the auditor that the plaintiffs desired to have the advantage of the provisions of section 710 of the Code of Civil Procedure. It was further shown by the petition that the said Rogers had

served as such deputy city treasurer for the whole of the month of November, 1914. The answer of appellant admitted all of these facts, and alleged further by way of defense that on the same day that the transcript of the justice's judgment was served, but prior to the time when it was so served upon appellant, there had been served an instrument whereby the said Rogers and his wife assigned to H. M. Strong all of that portion of the salary earned by Rogers from the first to the twenty-eighth day of November, 1914. The trial judge determined that the fact of the making and filing of the assignment did not affect the rights of respondents here to intercept money owing to Rogers at the time the transcript of the -justice's judgment was filed with appellant. Prior to the enactment of section 710 of the Code of Civil Procedure, it had uniformly been held that the salary of a public officer was not subject to the process of attachment or garnishment. The enactment of the statute was a valid exercise of legislative power and gave direct authority for the action taken by the respondents herein. (Ruperich v. Baehr, 142 Cal. 190, [75 Pac. 782]; Lawson v. Lawson, 158 Cal. 446, [111 Pac. 354].) Mandamus has been held to be a proper remedy in a case where there is a refusal to follow the direction of the statute. (First National Bank of Chico v. Tyler, 21 Cal. App. 791, [132 Pac. 1053].) The filing of the transcript of judgment operated as a garnishment; its effect would be to impound whatever money Rogers as a deputy treasurer would at the end of the month have been entitled to collect for that portion of the month from the first day to the twenty-eighth day of November. The statute permits the filing of such a transcript where "money is owing to the judgment debtor." The ordinary rule as applicable to garnishment applies, which is that a garnishment will impound a debt even though the time of payment has not arrived. (Drake on Attachment, sec. 355; Waples on Attachment & Garnishment, p. 264; 2 Shinn on Attachment, sec. 480.) It therefore is made plain that unless the instrument of assignment filed on the same day as was the transcript of judgment but prior to the hour that the latter reached the auditor's hands, legally transferred the debt of the city to the assignee named therein, the judgment as entered in this case was a proper one and must be sustained. As opposed to the validity of this assignment is the well established rule that, for considerations of public policy, a