1039. (1027.) When issue legitimate, though former marriage exists.-3. When either of the parties to a marriage, void because a former marriage exists undissolved, shall have contracted such void marriage in the reasonable belief that such disability did not exist, the issue of such marriage, begotten before the discovery of such disability by such innocent party, shall be deemed legitimate.

The fact that the issue of a void marriage is legitimate does not affect the status of the marriage or the rights of the parties thereto. Light v. Lane, 41 Ind. 539; Teter v. Teter, 88 Ind. 494.

1040. (1028.) Proceedings to determine legitimacy.-4. For the purpose of evidence, any person or persons interested in the question of such legitimacy may file his petition in the circuit court or superior court of any county in this state where either of the parties to said marriage may reside, setting forth the facts, and making defendants thereto all persons interested in such question, and give such notice to said defendants as is by this act required to be given to the defendant on a petition for a divorce; and the court, on hearing such petition, shall decree such issue to be legitimate or illegitimate, as the facts may be. And from such decree an appeal may be taken to the supreme court, and when taken, the case shall be governed by the same rules and disposed of as other civil actions are in cases of appeal.

1041. (1029.) Decree conclusive-Review by infant.-5. Such decree as shall be finally rendered in cases provided for in the next preceding section shall be conclusive between the parties thereto and those claiming under them; but any minor defendant may have the same reviewed, at any time within one year after arriving at the age of twenty-one years.

1042. (1030.) Judgment, how opened-Purchasers protected.—6. Parties against whom a judgment of divorce has been or shall be rendered, without other notice than publication in a newspaper, may have the same opened at any time, so far as relates to the care, support, and custody of the children. Parties against whom a judgment of divorce shall hereafter be rendered, without other notice than publication in a newspaper, may, at any time within two years after the rendition of such judgment, have the same opened, and be allowed to defend as well on the granting of the divorce as in relation to the allowance of alimony and the disposition of property; and until the expiration of said two years, it shall not be lawful for the party obtaining such divorce to marry again; which shall be stated in the decree of the court. Before any judgment shall be opened, as above, for any cause, the applicant shall file a statement of the causes relied upon, and give such notice thereof as the court in term time, or the judge thereof in vacation, shall require. And when the causes specified by such applicant relate to the granting of the divorce, alimony, and disposition of property, or either of them, the applicant shall file an affidavit stating that, during the pendency of the action, he or she received no actual notice thereof, in time to appear in court at the time of the trial of such action, and object to said judgment, and shall also pay such costs as the

any

court may direct. Any property which may have been sold under such judgment so sought to be opened, and which shall have passed into the hands of a purchaser or purchasers in good faith, shall not be ffected by any proceeding consequent upon the opening of such judg

ment.

This section relates only to parties constructively summoned. The decree of divorce as to the custody of children is, in other cases, final and conclusive, unless there be reserved the power to modify it. Sullivan v. Learned, 49 Ind. 252.

The general policy of our law is against disturbing divorces granted. McJunkin v. McJunkin, 3 Ind. 30; McQuigg v. McQuigg, 13 Ind. 294; Mason v. Mason, 101 Ind. 25. The supreme court may reverse a decree granting a divorce. Sullivan v. Sullivan, 34 Ind. 368; Garner v. Garner, 38 Ind. 139.

A bill of review will not lie as to a decree of divorce. Willman v. Willman, 57 Ind. 500; Earle v. Earle, 91 Ind. 27.

If a decree of divorce is obtained by fraud, the same may be set aside. Earle v. Earle, 91 Ind. 27; Nicholson v. Nicholson, 113 Ind. 131; Brown v. Grove, 116 Ind. 84. Decrees of divorce may be annulled for want of jurisdiction. Willman v. Willman, 57 Ind. 500.

Decrees of divorce granted in other states without jurisdiction of the parties are not effective in this state. Hood v. State, 56 Ind. 263.

The marriage of a party within two years after obtaining a divorce on constructive notice is not void, but is liable to be rendered so by a reversal of the decree within that time. Mason v. Mason, 101 Ind. 25.

1043. (1031.) Petition for divorce-Residence-Affidavit.—7. Divorce may be decreed by the superior and circuit courts of this state, on petition filed by any person who, at the time of the filing of such petition, is and shall have been a bona fide resident of the state for the last two years previous to the filing of the same, and a bona fide resident of the county at the time of and for at least six months immediately preceding the filing of such petition; which bona fide residence shall be duly proven by such petitioner, to the satisfaction of the court trying the same, by at least two witnesses who are resident freeholders and householders of the state. And the plaintiff shall, with his petition, file with the clerk of the court an affidavit subscribed and sworn to by himself, in which he shall state the length of time he has been a resident of the state, and stating particularly the place, town, city, or township in which he has resided for the last two years past, and stating his occupation, which shall be sworn to before the clerk of the court in which said complaint is filed.

The residence of the plaintiff determines jurisdiction in divorce; and such jurisdiction is retained, notwithstanding a subsequent change of residence. Waltz v. Waltz, 18 Ind. 449; Ewing v. Ewing, 24 Ind. 468; Baily v. Schrader, 34 Ind. 260.

The domicile of the husband is presumed to be the domicile of the wife, unless a separate actual residence be shown by her. Jenness v. Jenness, 24 Ind. 355.

There must be proof of bona fide residence, as required in this section, to support a decree of divorce. Powell v. Powell, 53 Ind. 513; Maxwell v. Maxwell, 53 Ind. 363; Prettyman v. Prettyman, 125 Ind. 149.

Admissions of the defendant of the residence of the plaintiff will not dispense with proof of the fact. Prettyman v. Prettyman, 125 Ind. 149.

The affidavit filed with the petition as to the residence of the plaintiff must substantially comply with the statute. Eastes v. Eastes, 79 Ind. 363.

1044. (1032.) Causes for divorce.-8. Divorces may be decreed upon the application of the injured party, for the following causes and no other:

First. Adultery, except as hereinafter provided.

The petition should state the time, place, and the person with whom adultery was committed. Christianberry v. Christianberry, 3 Blkf. 202; Lewis v. Lewis, 36 Ind. 218. Adultery committed after filing the petition may be set up in answer to a crosspetition. Armstrong v. Armstrong, 27 Ind. 186.

If the person with whom adultery was committed is used to prove the fact, the evidence of such person is not as creditable as that of a disinterested person. Lewis v. Lewis, 9 Ind. 105.

Second. Impotency, existing at the time of the marriage.
Third. Abandonment for two years.

Abandonment is the willful leaving of one party by the other with the intention of causing a palpable separation. Stanbrough v. Stanbrough, 60 Ind. 275.

The evidence must show which party abandoned the other. McCoy v. McCoy, 3 Ind. 555.

If one party justifiably leaves the other there is no abandonment. Shores v. Shores, 23 Ind. 546.

Fourth. Cruel and inhuman treatment of either party by the other. As to facts constituting cruel treatment, see Shores v. Shores, 23 Ind. 546; Ruby v. Ruby, 29 Ind. 174; Powell v. Powell, 53 Ind. 513; Small v. Small, 57 Ind. 568; Eastes . Eastes, 79 Ind. 363; Rice v. Rice, 6 Ind. 100.

Personal violence and neglect is cause for a divorce. Mercer v. Mercer, 114 Ind. 558. False charges by a husband against a wife of unchastity may constitute cruel treatment. Graft v. Graft, 76 Ind. 136.

Condonation applies to cruel treatment. Sullivan v. Sullivan, 34 Ind. 368.

Fifth. Habitual drunkenness of either party.

Sixth. The failure of the husband to make reasonable provisions for his family for a period of two years.

Failure of a husband to provide for his family may be proven to support a charge of cruel treatment. Eastes v. Eastes, 79 Ind. 363.

Inability of a husband to provide for his wife which is caused by physical or mental disease is no cause for a divorce. Baker v. Baker, 82 Ind. 146.

Seventh. The conviction, subsequent to the marriage, in any country, of either party, of an infamous crime.

Insanity arising subsequent to marriage is no cause for divorce. Baker v. Baker, 82 Ind. 146.

Divorces may be granted for causes arising out of this state. Wilcox v. Wilcox, 10 Ind. 436.

1045. (1033.) When not granted for adultery.-9. Divorces shall not be granted for adultery in any of the following cases:

First. When the offense has been committed with the connivance or consent of the party seeking the divorce.

Second. When the party seeking the divorce has voluntarily cohabited with the other, with knowledge of the fact; or has failed to file

his or her petition for two years after he or she had discovered the

same.

Third. When the party seeking the divorce has been guilty of adultery under such circumstances as would have entitled the opposite party, if innocent, to a decree.

Adultery is a good defense to a petition or cross-petition, and may be given in evidence, under general denial, as such defense. Armstrong v. Armstrong, 27 Ind. 186. If a party is guilty of adultery such party can not obtain a divorce on the ground of adultery. Christianberry v. Christianberry, 3 Blkf. 202.

Cohabitation after knowledge of adultery is a condonation of the offense. Phillips v. Phillips, 4 Blkf. 131.

1046. (1034.) Causes, how specified.-10. A petition for divorce shall specify the causes therefor with certainty to a common intent.

If adultery be charged as a cause, the time and place of commission must be alleged. Christianberry v. Christianberry, 3 Blkf. 202; Lewis v. Lewis, 36 Ind. 218.

The petition should allege that the parties are living apart at the commencement of the suit. Burns v. Burns, 60 Ind. 259.

The petition of a wife need not allege that she has borne a good reputation for chastity. Fritz v. Fritz, 23 Ind. 388.

The provisions of the civil code as to pleading and practice apply to divorce causes in the absence of contrary provisions. Powell v. Powell, 104 Ind. 18.

1047. (1035.) Summons and service.-11. The clerk of the court in which such petition is filed shall issue a summons for the defendant to appear and answer said petition; which summons shall be personally served on said defendant; if a resident of the state, either by reading or leaving a copy thereof at his or her usual place of residence, such usual place to be the residence of such defendant at the time the copy is so left.

The summons may be served in any county in the state. Ind. 468.

Ewing v.

Ewing, 24

Prior to the act of March 8, 1883, Acts 1883, page 199, a summons in a divorce suit could not be made returnable at the same term at which the cause might be tried. Eastes v. Eastes, 79 Ind. 363.

When a default is taken the record on appeal must show notice to the defendant. Cochnower v. Cochnower, 27 Ind. 253.

If there is a false return of service made at the instance of the plaintiff, a judgment taken by default is void. Cavanaugh v. Smith, 84 Ind. 380.

[1879 S., p. 124. In force May 31, 1879.]

1048. (1036.) Notice by publication-Copy, when mailed.-12. If it shall appear by the affidavit of a disinterested person that the defendant is not a resident of this state, the clerk shall give notice of the pendency of such petition, by publication for three successive weeks in some weekly newspaper of general circulation, published in such county, or if there be no such paper, then in one published in this state nearest to the county seat of such county: Provided, That the plaintiff shall, in case such notice is to be given by publication as aforesaid, before the same is given, file his or her affidavit with the clerk, stating therein the residence of the defendant, if such residence

be known to the plaintiff; and if such residence be unknown to the plaintiff, such affidavit shall so state; and in case such affidavit state the residence of the defendant, the clerk shall forward, by mail, to such defendant the number of the paper containing such notice, with the notice marked.

The record in a decree by default must contain the notice and the proof thereof. Cochnower v. Cochnower, 27 Ind. 253.

Courts have jurisdiction to decree divorces on notice by publication. McFarland v. McFarland, 40 Ind. 458.

An affidavit to procure publication is not bad because it is not positive, but as the affiant "is informed and verily believes." Bonsell v. Bonsell, 41 Ind. 476.

Personal judgments for alimony can not be rendered on constructive notice. Beard v. Beard, 21 Ind. 321; Lytle v. Lytle, 48 Ind. 200; Sowders v. Edmunds, 76 Ind. 123.

[1873, p. 107. In force March 10, 1873.]

1049. (1037.) Issue and trial.-13. The cause shall stand for issue and trial at the first term of the court after the summons has been personally served upon the defendant ten days, or publication has been made thirty days, before the first day of such term.

By act of March 8, 1883, acts 1883, page 199, Ell. Sup., section 16, ante section 524, it is provided that a day may be fixed for the defendant to appear and answer in term time as in ordinary civil actions.

The provisions of the civil code apply in the trial of the cause in the absence of special provisions in the divorce statute. Powell v. Powell, 104 Ind. 18.

The parties are entitled to changes of venue from the county and judge. Evans v. Evans, 105 Ind. 204; Powell v. Powell, 104 Ind. 18.

A trial by jury can not be demanded, and if issues of fact are submitted to a jury the verdict is not binding on the court. Lewis v. Lewis, 9 Ind. 105; Morse v. Morse, 25 Ind. 156; Musselman v. Musselman, 44 Ind. 106.

Decrees of divorce can not be granted by consent of the parties. Scott v. Scott, 17 Ind. 309.

The law of the place of trial is the rule of decision. Tolen v. Tolen, 2 Blkf. 407.
The proof should show that the parties were living apart at the time of the trial.
Burns v. Burns, 60 Ind. 259.

It is not proper to file interrogatories with the pleadings for the parties to answer. Simons v. Simons, 107 Ind. 197.

The parties are competent witnesses. Smith v. Smith, 77 Ind. 80.

Marriage may be proven by a person present at the time of marriage. Nixon v. Brown, 4 Blkf. 157.

Proof of co-habitation is sufficient evidence of marriage. Fleming v. Fleming, 8 Blkf. 234; Trimble v. Trimble, 2 Ind. 76; Bowers v. VanWinkle, 41 Ind. 432.

The supreme court may reverse a decree for divorce, but not at the instance of an 'appellant who has married again. Sullivan v. Sullivan, 34 Ind. 368; Garner v. Garner, 38 Ind. 139; Stephens v. Stephens, 51 Ind. 542.

A reversal of a decree refusing a divorce will only be made in a very clear case. Ruby. Ruby, 29 Ind. 174; Henderson v. Henderson, 110 Ind. 316.

When a divorce is decreed to the husband upon his own petition, he may be adjudged to pay costs. Hedrick v. Hedrick, 28 Ind. 291.

A decree of divorce can only be set aside on a motion for a new trial, or on the ground of fraud. McQuigg v. McQuigg, 13 Ind. 294; Ewing v. Ewing, 24 Ind. 468; Earle v. Earle, 91 Ind. 27.