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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.

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

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 emvrace, limit, or control, any proceeding against any officer 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 -ny 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 uch 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 subpœnaed to testify.

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

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. (542.)

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. (543.)

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. (544.)

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. (545.),

1019. Approval by 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. (546.)

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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. (547)

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. (548.) 1022. Conveyance by party, how enforced. 623. In cas 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. (549.)

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

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 judgment) 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).

SEC.

1024. Marriages void.

ARTICLE 37-DIVORCE.

SEC.

1039. Answer-Proofs required. 1025. Marriages voidable-Issue legitimate. 1040. Cross-petition and proceedings there1026. Issue of certain marriages legitimate.

marriage exists.

on.

1027. When issue legitimate, though former 1041. Witnesses-Depositions. 1042. Interlocutory orders, how enforced. 1028. Proceedings to determine legitimacy. 1043. Misconduct of husband-Rights as to 1029. Decree conclusive-Review by infant. 1030. Judgment, how opened-Purchasers 1044. Misconduct of wife-Rights as to protected.

realty.
realty.

1031. Petition for divorce-Residence-Affi- 1045. Alimony.

davit.

1032. Causes for divorce.

1033. When not granted for adultery.

1034. Causes, how specified.

1035. Summons and service.

1046. Custody of children.

1047. Decree for alimony, how payable. 1048. Effect of divorce.

1049. Divorce granted in another State. 1049a. Prosecuting attorney defends.

1036. Notice by publication-Copy, when 1049b. Fee of prosecuting attorney.

mailed.

1037. Issue and trial.

1038. When Prosecutor to resist.

1049c. Written authority of attorney for defendant.

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

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.

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.

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

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.

1027. When issue legitimate, though former marriage exists. 3. When either of the parties to a marriage, void because a former marriage exists Issolved, shall have contracted such void marriage in the f 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.

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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. 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.

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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 Court may direct. Any property which may have been sold under any 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 affected by any proceeding consequent upon the opening of such judgment.

1. 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.

2. The general policy of our law is against disturbing divorces granted.- McJunkin v. McJunkin, 3 Ind. 30; McQuigg v. McQuigg, 13 id. 294.

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 I wo years previous to the filing of the same, and a bona fide resident of bounty 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.

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I. 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 id. 468; Bailey v. Schrader, 34 id. 260. 2. The domicile of the husband is presumed to be the domicile of the wife, unless a separate actual residence be shown by her.-Jenniss v. Jenniss, 24 Ind. 355.

3. 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, id. 363.

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.

Second. Impotency, existing at the time of the marriage.

Third. Abandonment for two years.

Fourth. Cruel and inhuman treatment of either party by the other.
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.

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

1. As to facts constituting cruel treatment, see Shores v. Shores, 23 Ind. 546; Ruby v. Ruby, 29 id. 174; Powell v. Powell, 53 id. 513; Small v. Small, 57 id. 568.

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 also been guilty of adultery under such circumstances as would have entitled the opposite party, if innocent, to a decree.

1. 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.

2. This is merely declaratory of the common law.-Christianberry v. Christianberry, 3 Blackf. 202; Phillips v. Phillips, 4 id. 131; McCafferty v. McCafferty, 8 id. 218.

3. Misconduct in either party may be condoned; but that does not operate where the subsequent acts of the offender show that there was no repentance.-- Armstrong v. Armstrong, 27 Ind. 186; Sullivan v. Sullivan, 34 id. 368.

4. A divorce should not be granted while cohabitation continues between the parties. Separation must be alleged and proved. Condonation will be presumed from subsequent cohabitation, and cohabitation from living together of husband and wife.— Burns v. Burns, 60 Ind. 259.

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

1. If adultery be charged as a cause, the time and place of commission must be alleged.- Christianberry v. Christianberry, 3 Blackf. 202..

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.

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

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.

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

2. A petition, if it state a cause of action, may be good, as a complaint, to annul a marriage, though not good for divorce.- Tefft v. Tefft, 35 Ind. 44.

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

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.

1. The notice required by law, when shown to be given, confers jurisdiction to adjudge and decide upon the matters alleged in the petition.—McFarland v. McFarland, 40 Ind. 458.

2. A change of Judge, after verdict and before decree, does not affect the proceedings. Hedrick v. Hedrick, 28 Ind. 291.

3. 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 id. 139, Stephens v. Stephens, 51 id. 542.

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

5. There can be no proceedings to review a judgment in divorce.- Willman v. Willman, 57 Ind. 503; McFarland v. McFarland, 40 id. 438.

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