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The inherent power of courts of superior jurisdiction to punish contempts can not be limited by the legislature. Little v. State, 90 Ind. 338; Holman v. State, 105 Ind. 513; Cheadle v. State, 110 Ind. 301.

An attorney can not be summarily disbarred as a punishment for contempt. Er parte Smith, 28 Ind. 47.

The imprisonment must be for a definite time, or expire on the performance of a condition. Whittem v. State, 36 Ind. 196.

1023. (1011.) Trial for direct-Appeal.-7. When any person shall be arraigned for a direct contempt in any court of record of this state, no affidavit, charge in writing, or complaint shall be required to be filed against him, but the court shall distinctly state the act, words, signs, or gestures, or other conduct of the defendant which is alleged to constitute such contempt; and such statement shall be reduced to writing, either by the judge making it or by some reporter authorized by him to take it down when made; and the same shall be substantially set forth in the order of the court on the same, together with any statement made in explanation, extenuation, or denial thereof which the defendant may make in response thereto; and the court shall thereupon pronounce judgment, either acquitting and discharging the defendant or inflicting such punishment upon him as may be consistent with the provisions of this act; and if found guilty, the defendant shall have the right to except to the opinion and judgment of the court. And in all cases where the defendant may be adjudged to pay a fine of fifty dollars or more, or to be imprisoned for such contempt, he shall have the right, either before or after the payment of such fine or undergoing such imprisonment, to move the court to reconsider its opinion and judgment of the case, upon the facts before it, or upon the affidavits of any or all persons who were actually present and heard or saw the conduct alleged to have constituted such contempt; and, if the defendant shall fail to present the affidavit of every person present, in support of his motion, the court may direct the affidavits of all such persons as were so present (whose affidavits the defendant may have failed to procure) to be procured; and upon all such affidavits and the original statements of the court and himself touching such contempt, the defendant may move the court for a new trial, and rescission of its judgment against him; and, if the court shall thereupon overrule such motion, the defendant may except and file a bill of exceptions, as in other criminal actions; and in all cases an appeal shall lie thereupon to the supreme court; or in case such judgments shall have been rendered in any special term of any superior court, an appeal shall lie in the first instance to the general term thereof, and thence, as in other cases, to the supreme court.

In proceedings for constructive contempt, a statement under oath of the acts committed should be filed, and an attachment or rule to show cause issued. Whittem . State, 36 Ind. 196.

It is questionable if courts of superior jurisdiction can be required to make any formal charge of the acts constituting a direct contempt. Holman v. State, 105 Ind. 513.

If matters constituting a direct contempt are entered of record the supreme court will accept such statement as true. Holman v. State, 105 Ind. 513.

A motion to discharge the rule will test the sufficiency of the charge or information. Cheadle v. State, 110 Ind. 301.

Jury trials can not be had in proceedings for contempt. Garrigus v. State, 93 Ind. 239. Changes of venue can not be granted in proceedings for contempt. State v. Newton, 62 Ind. 517.

1024. (1012.) Indirect-Rule to show cause.-8. In all cases of indirect contempt, the person charged therewith shall be entitled, before answering thereto or being punished therefor, to have served upon him a rule of the court against which the alleged contempt may be committed; which said rule shall clearly and distinctly set forth the facts which are alleged to constitute such contempt, and shall specify the time and place of such facts with such reasonable certainty as to inform the defendant of the nature and circumstances of the charge against him, and shall specify a time and place at which he is required to show cause, in said court, why he should not be attached and punished for such contempt, which time the court shall, on proper showing, extend so as to give the defendant a reasonable and just opportunity to purge himself of such contempt. No such rule, as hereinbefore provided for, shall ever issue until the facts alleged therein to constitute such contempt shall have been brought to the knowledge of the court by an information duly verified by the oath or affirmation of some officers of the court or other responsible person.

An information by the prosecuting attorney is not required, but a statement under oath of the facts constituting the contempt should be filed, and the rule against the defendant should set forth such facts. Worland v. State, 82 Ind. 49; Whittem v. State, 36 Ind. 196.

A motion to discharge the rule will test the sufficiency of the information. Cheadle v. State, 110 Ind. 301.

1025. (1013.) Proceedings-Decision-Appeal.-9. If the defendant shall fail to appear in said court, at the time and place specified in the rule provided for in the last preceding section, to answer the same, or if, after having appeared thereto, the defendant shall fail or refuse to answer touching such alleged contempt, the court may proceed at once, and without any further delay, to attach and punish him or her for such contempt; but if the defendant shall answer to the facts set forth in such rule, by showing that, even if they are all true, they do not constitute a contempt of the court, or by denying or explaining or confessing and avoiding them, so as to show that no contempt was intended, then, and in every such case, the court shall acquit and discharge the defendant. But if the defendant shall not, in his answer to such rule, sufficiently deny, explain, or avoid the facts therein set forth, so as to show that no contempt has been committed, the court may proceed to attach and punish him for such contempt by fine or imprisonment, or both, as hereinbefore provided; and the defendant, having appeared to such rule, may except, file a bill of exceptions, and appeal to the general term and to the supreme court, in the same manner as in cases of direct contempt.

If the defendant fully answers all charges made against him he should be discharged. State v. Earl, 41 Ind. 464; Burke v. State, 47 Ind. 528; Wilson v. State, 57 Ind. 71.

If the answer of the defendant does not purge him of contempt the court should assess the punishment. Haskett v. State, 51 Ind. 176.

If the defendant appears to the rule and files an answer, the court may assess the punishment without issuing an attachment. Hawkins v. State, 125 Ind. 570.

This section does not apply to contempts in failing to obey the process of courts. Baldwin v. State, 126 Ind. 24.

Appeals lie from judgments in contempt cases to the supreme court. Whittem v. State, 36 Ind. 196; Worland v. State, 82 Ind. 49.

In proceedings for a constructive contempt the practice on appeal is the same as in civil cases. Beck v. State, 72 Ind. 250.

In cases of direct contempt the supreme court will accept as true the statement entered of record by the lower court of the matter constituting the contempt. Holman v. State, 105 Ind. 513.

[1881, p. 10. In force September 19, 1881.]

1026. (1014.) To what courts law applicable-Proviso.-10. The provisions of this act shall apply to all proceedings for contempt in all courts of record in this state except the supreme court thereof: Provided, however, That nothing herein contained shall be construed or held to embrace, limit, or control, any proceeding against any of ficer or party for contempt for the enforcement of civil rights and remedies: And provided, further, That the provisions of this act shall not apply to any case where any person has been personally served with notice to appear and testify as a witness in any court of this state, in any case, civil or criminal, but that such person so failing to appear as a witness may be proceeded against as for contempt of court by attachment, as though this act was not in force; but the proceeding against such absent witness by attachment shall not cause a continuance of the case in which such witness was subpoenaed to testify. This section excepts from the operation of the preceding sections contempts for failing to obey process. Baldwin v. State, 126 Ind. 24.

As to the power of justices of the peace and boards of county commissioners to punish contempts. See Murphy v. Wilson, 46 Ind. 537; State v. Newton, 62 Ind. 517; Wagner v. State, 68 Ind. 42; Garrigus v. State, 93 Ind. 239.

Notaries public have no power to punish contempts. Burtt v. Pyle, 89 Ind. 398.

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[1881 S., p. 240. In force September 19, 1881.]

1027. (1015.) Real property, how conveyed.-616. Real property may be conveyed by a commissioner appointed by the court—

First. Where, by the judgment in an action, a party is ordered to convey real property to another or any interest therein.

Second. Or where real property, or any interest therein, has been sold, and the purchase-money paid.

The validity of the deed can not be questioned in a collateral proceeding. Wilkins t. De Pauw, 10 Ind. 159.

The common pleas court had power to appoint a commissioner to make a deed in a proper case.

Cortner v. Amick, 13 Ind. 463.

Where a vendor dies the court may appoint a commissioner to make a deed. Rush v. Truby, 11 Ind. 462; Leslie v. Slusher, 15 Ind. 166.

1028. (1016.) Contents of deed.-617. The deed of the commissioner shall so refer to the judgment authorizing the conveyance, that the same may be readily found, but need not recite the record in the case generally.

1029. (1017.) Title passed under judgment.-618. A conveyance made in pursuance of a judgment shall pass to the grantee the title of the parties ordered to convey the land.

1030. (1018.) Title passed under sale.-619. A conveyance made in pursuance of a sale ordered by the court shall pass to the grantee the title of all the parties, to the action or proceeding.

When parties claim under the same grantor, the deed will be evidence of title without the record of the proceedings in the cause. Bennett v. Gaddis, 79 Ind. 347.

1031. (1019.) Approval of court necessary.-620. A conveyance by a commissioner shall not pass any right, until it has been examined and approved by the court; which approval shall be indorsed on the conveyance and recorded with it.

1032. (1020.) Signature-Names of parties.-621. It shall be sufficient for the conveyance to be signed by the commissioner only, without affixing the names of the parties whose title is conveyed; but the names of the parties shall be recited in the body of the conveyance. 1033. (1021.) Recording.-622. The conveyance shall be recorded in the office in which, by law, it should have been recorded had it been made by parties whose title is conveyed by it.

1034. (1022.) Conveyance by party, how enforced.-623. In case of a judgment to compel a party to execute a conveyance of real estate, the court may enforce the judgment by attachment or sequestration, or appoint a commissioner to make the conveyance.

[1863, p. 7. In force October 10, 1863.]

1035. (1023.) Form of commissioner's deed.-3. If the conveyance is made by a commissioner appointed by the court, the following form may be used, viz.: "A. B., commissioner by the order (or judg ment) of (naming the court), in the case of (naming the party plaintiff), against (naming the party defendant), (or) on petition of (naming the description of the petitioner as A. B., administrator of C. D.), (or) guardian of (naming the wards), entered in (describe the kind of record, number of volume and page), conveys to E. F. (describe the premises), for (state the consideration)."

The failure to insert in the deed the page of the record of the proceedings does not invalidate the deed. Hammann v. Mink, 99 Ind. 279.

If the deed refers to the book and page where the proceedings are entered, subsequent purchasers must take notice of the proceedings. Singer v. Scheible, 109 Ind. 575.

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1036. (1024.) Marriages void.-1. All marriages prohibited by law on account of consanguinity, affinity, difference of color, or where either party thereto has a former wife or husband living, if solemnized within this state, shall be absolutely void without any legal proceedings.

If either party have a husband or wife living at the time of the marriage, the marriage is void. Tefft v. Tefft, 35 Ind. 44; Light v. Lane, 41 Ind. 539.

Marriages between negroes and whites are unlawful. State v. Gibson, 36 Ind. 389. The presumption of law is always in favor of the legality of marriages. Teter v. Teter, 101 Ind. 129; Castor v. Davis, 120 Ind. 231; Boulden v. McIntire, 119 Ind. 574.

1037. (1025.) Marriages voidable-Issue legitimate.-25. When either of the parties to a marriage shall be incapable, from want of age or understanding, of contracting such marriage the same may be declared void, on application of the incapable party, by any court having jurisdiction to decree divorces; but the children of such marriage, begotten before the same is annulled, shall be legitimate; and in such cases the same proceedings shall be had as is provided in applications for divorce.

A child begotten before, but born during, marriage is legitimate. Doyle v. State, 61 Ind. 324.

If a marriage is void the innocent party may have the same declared invalid. Tefft v. Tefft, 35 Ind. 44.

The guardian of an incapable person contracting a marriage can not sue to have the marriage declared void. Pence v. Aughe, 101 Ind. 317.

1038. (1026.) Issue of certain marriages legitimate.-2. The issue of a marriage, void on account of consanguinity, affinity, or difference of color, shall be deemed to be legitimate.

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