6. The proceedings in divorce are so far special, as to allow all the provisions of the Act full force, unaffected by the Code.- Ewing v. Ewing, 24 Ind. 468.

7. Sections 396 and 563, and sections concerning change of venue, are not applicable to divorce suits.-Id., Musselman v. Musselman, 44 Ind. 106.

8. Jury trial is not demandable as of right, in divorce.-- Morse v. Morse, 25 Ind. 156; Leffel v. Leffel, 35 id. 76.

9. The finding of a jury, when one is had, is not conclusive, and on the final hearing may be reviewed or set aside by the Court. Rice v. Rice, 6 Ind. 100; Lewis v. Lewis, 9 id. 105.

10. 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.

1038. When Prosecutor to resist. 26. Whenever a petition for divorce remains undefended, it shall be the duty of the Prosecuting Attorney to appear and resist such petition.

1. The failure of the Prosecuting Attorney to appear can not be assigned for error, on appeal. Green v. Green, 7 Ind. 113.

2. An attorney may take a lien upon a judgment for alimony for his fees due from the wife.- Id.

1039. Answer-Proofs required. 14. The defendant shall answer said petition under oath, if required so to do by the petitioner; but no decree shall be rendered on default without proof, nor shall any admissions made in said answer be used as evidence in any other case against said defendant; nor shall the denial under oath, by the defendant, of the facts alleged in the petition render necessary any other or further proof by the complainant than would have been necessary if such denial had not been under oath.

1. The law favors marriage, and will not sanction or enforce contracts intended to promote its dissolution.— Muckenburg v. Holler, 29 Ind. 139; Ruby v. Ruby, id. 174. 2. A divorce must be granted for the fault of one of the parties; it can not be granted upon the whole case generally.— McCoy v. McCoy, 3 Ind. 555; Rourke v. Rourke, 8 id. 427; Gullett v. Gullett, 25 id. 517.

1040. Cross-petition and proceedings thereon. 15. In addition to an answer, the defendant may file a cross-petition for divorce; and when filed, the Court shall decree the divorce to the party legally entitled thereto. If the original petition be dismissed after the filing of the cross-petition, the defendant may proceed to the trial of the cross-petition without further notice to the adverse party; and the case upon such cross-petition shall in all things be governed by the same rules applicable to a case on an original petition.

1. A non-resident defendant may file a cross-petition, and have the same determined in a case pending here.— Jenniss v. Jenniss, 24 Ind. 355.

2. The dismissal of the petition does not affect proceedings under the cross-petition. -Musselman v. Musselman, 44 Ind. 106.

3. General reputation is evidence of marriage, and if it took place in another State, It will be presumed valid at common law. Trimble v. Trimble, 2 Ind. 76.

1041. Witnesses-Depositions. 16. Witnesses may be examined in Court, or depositions taken and used as in other civil actions, at the option of the party offering the testimony; but this section shall not be construed to authorize the taking of depositions where the witnesses can be compelled to attend and testify as provided by law in other cases, unless the Judge, for good cause shown, shall otherwise direct.

1042. Interlocutory orders, how enforced. 17. Pending a petition for divorce, the Court, or the Judge thereof in vacation, may make, and by

attachment enforce, such orders for the disposition of the persons, property, and children of the parties as may be deemed right and proper, and such orders relative to the expenses of such suit as will insure to the wife an efficient preparation of her case and a fair and impartial trial thereof. And on decreeing a divorce in favor of the wife or refusing one on the application of the husband, the Court shall, by order to be enforced by attachment, require the husband to pay all reasonable expenses of the wife in the prosecution or defense of the petition when such divorce has been granted or refused: Provided, That such orders shall be made under the same rules and regulations, and upon such notice as restraining orders and injunctions are granted in other civil actions, except that no bond shall be required of either party.

1. A temporary allowance may be made on the application of the wife, under the first clause of this section, upon a proper showing, to enable her to prepare and try her case and for her maintenance during its pendency. Horrell v. Horrell, 39 Ind. 185; Musselman v. Musselman, 44 id. 106. This allowance is discretional, but the allowance, upon the success of her application, of her reasonable expenses, is imperative.- Id.

1043. Misconduct of husband-Rights as to realty. 18. A divorce granted for misconduct of the husband shall entitle the wife to the same rights, so far as her real estate is concerned, that she would have been entitled to by his death.

I. This gives no rights to a divorced wife in the real estate of a deceased husband. -Lash v. Lash, 58 Ind. 526.

1044. Misconduct of wife-Rights as to realty. 19. A divorce decreed on account of the misconduct of the wife shall entitle the husband to the same rights, so far as his real estate is concerned, as he would have been entitled to by her death.

1045. Alimony. 20. The Court shall make such decree for alimony, in all cases contemplated by this Act, as the circumstances of the case shall render just and proper; and such decree for alimony, heretofore made or hereafter made, shall be valid against the husband, whether asked for in the petition or given by the Judge on default.

1. Upon a judgment for alimony, there is no exemption of property from execution.Menzie v. Anderson, 65 Ind. 239.

2. The decree for alimony will not be reviewed above, unless granted indiscreetly. -Conn v. Conn, 57 Ind. 323.

3. Alimony is an incident of divorce, and can be obtained only on the decree of the Court granting it. Upon an agreement to pay alimony outside of the decree, no action lies.-Moon v. Baum, 58 Ind. 194.

4. A decree for alimony is conclusive upon all parties, and can not be attacked collaterally. Ayers v. Harshman, 66 Ind. 291.

-

5. The decree for alimony is an absolute personal judgment of the wife, collectible by execution: is in lieu of her interest in the estate of her husband, in case of his death; and should be in such sum as his pecuniary circumstances may make proper. Cox v. Cox, 25 Ind. 303; Garner v. Garner, 38 id. 139; Musselman v. Musselman, 44 id. 106.

6. Objections to the amount of alimony as excessive must be taken by motion for new trial or for modification of the judgment.- Bradley v. Bradley, 45 Ind. 67.

7. In adjusting alimony, all questions of property between the parties are considered and settled.- Muckenburg v. Holler, 29 Ind. 139.

8. Alimony may be allowed to the wife on her application, though the divorce, for her fault, is granted to the husband.-Cox v. Cox, 25 Ind. 303; Coon v. Coon, 26 id. 189; Hedrick v. Hedrick, 28 id. 291.

9. A personal judgment for alimony can not be rendered against a non-resident

defendant, constructively summoned.-Beard v. Beard, 21 Ind. 321; Lytle v. Lytle, 48 id. 200.

1046. Custody of children. 21. The Court in decreeing a divorce shall make provision for the guardianship, custody, support, and education of the minor children of such marriage.

1. In granting a divorce, the Court has the power to decree the custody of the minor children, and to make provision for them.-Bush v. Bush, 37 Ind. 164. 2. The order granting the custody of children is binding upon the parties, cannot be disregarded in habeas corpus, and remains in force until modified by the Court making it.-Williams v. Williams, 13 Ind. 523; Bailey v. Schroder, 34 id. 260.

3. An award of a minor child to the mother frees the father from all liability to her for its support.-Husband v. Husband, 67 Ind. 583; Conn v. Conn, 57 id. 323.

1047. Decree for alimony, how payable. 22. The decree for alimony to the wife shall be for a sum in gross, and not for annual payments; but the Court, in its discretion, may give a reasonable time for the payment thereof, by installments, on sufficient surety being given. And in all cases where alimony has been thus given by installments, or may hereafter be given, and the security required shall not be given within thirty days from the date of such decree, then the whole amount of such alimony shall become due and payable the same as if no such installments had been mentioned in the decree.

1048. Effect of divorce. 23. The divorce of one party shall fully dissolve the marriage contract as to both.

1. A divorced wife is not the widow of the deceased husband.—Billan v. Hercklebrath, 23 Ind. 71; Chenowith v. Chenowith, 14 id. 2.

1049. Divorce granted in another State. 24. A divorce decreed in any other State, by a Court having jurisdiction thereof, shall have full effect in this State.

1. The legal effect of a divorce is determined by the law in force when it was granted. Whitsell v. Mills, 6 Ind. 229.

2. A judgment for alimony rendered in another State, upon constructive service, without appearance, and which does not show that the defendant was a resident therein, is of no force here.-Middleworth v. McDowell, 49 Ind. 386.

3. A decree of divorce granted in another State, showing therein that neither of the parties were residents thereof, is invalid here.-Hood v. State, 56 Ind. 263.

4. A divorce here may be granted for a cause originating in another State.Wilcox v. Wilcox, 10 Ind. 436.

[1901 S., p. 336. Approved March 9, 1901.]

1049a. Prosecuting attorney defends. 1. That whenever a petition for the granting of a divorce shall be filed in any of the Circuit or Superior Courts of this State, in any county having a population of one hundred thousand (100,000) or more, by the last preceding United States census, and the time fixed in the summons issued on said petition for the return thereof has expired and there is no bonafide appearance of counsel for defendant entered in the appearance docket of said courts, for the purpose of making a good faith defense in the opinion of said courts it shall be the duty of the Judges of said courts to notify the Prosecuting Attorney of the judicial district where said courts are situated, to enter his name upon the appearance docket where said cause is docketed, and he shall resist and defend said petition on behalf of and in the name of the State of Indiana.

1049b. Fee of prosecuting attorney. 2. Whenever any petition for the granting of a divorce shall be filed in any of the Circuit or Superior Courts of this State, and the name of the Prosecuting Attorney as hereinbefore provided shall be entered upon the appearance docket as provided in Section 1 of this act, the court, upon motion of said Prosecuting Attorney, shall make an order requiring the person filing such petition to pay the Clerk of said court, before any further action shall be taken in said cause, the sum of five dollars, which sum shall be paid by said Clerk of said court to said Prosecuting Attorney, and shall be in full payment of his attorney's fees for the defense of said petition. If said order is not complied with within twenty days, the said petition shall, upon motion of said Prosecuting Attorney, be dismissed.

1049c. Written authority of attorney for defendant. 3. Every attorney appearing for the defendant in a divorce suit, other than said Prosecuting Attorney as provided in Section 1 of this act, shall, if ordered by the court, file a written authority executed by the defendant, and no appearance shall be recognized until such written authority shall be filed. And it shall be made the duty of said Prosecuting Attorney, at any time, to appear and defend any such petition at the request of the Judge of the court before whom said petition is pending, if it shall appear to said Judge that an attempt is being made to

secure the granting of said divorce by collusion of parties, and the same order shall be entered against the plaintiff as provided in Section two of this act.

1068. Entry and survey.
1069. Order and service.
1070. Action to quiet title.

1071. Quieting title and partition-Rules
applicable.

1072. Disclaimer Costs.

1056. Proof of defendant's possession, when 1073. Real party in interest to be plaintiff. needless.

1074. Occupying claimant.
1075. Complaint-Contents.

for 1076, Issue Trial--Assessment.

1077. Plaintiff's election.

1059. When plaintiff recovers damages only. 1078. Defendant's election.

1060. Recovery, separate or joint, according 1079. When to be tenants in common.

to rights.

1061. Damages and set-off.

1062. Exemplary damages.

1063. Proof against co-tenant.

1064. New trial of right-Bond.

1065. New trial after term.

1066. Innocent purchasers.

1067. Damages, in lieu of land.

1080. Color of title.

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

1050. Action for possession. 671. Any person having a valid subsisting interest in real property and a right to the possession thereof may recover the same by action to be brought against the tenant in possession; if there is no such tenant, then against the person claiming the title or some interest therein. (592.)

1. If the plaintiff do not show title and right of possession in himself, he cannot recover, even though the defendant have no title.-Mull v. Orme, 67 Ind.

95.

2. Possession is prima facie evidence of title.-Robinoe t. Doe, 6 Blackf. 85. 3. Evidence showing a judgment-execution and Sheriff's deed is prima facie sufficient to entitle the plaintiff to recover.-Roe v. Ross, 2 Ind. 99: Mercer t. Doe, 6 id. 80.

4. It must be shown that the defendant unlawfully keeps the plaintiff out of possession, to entitle the plaintiff to recover.-Lotz v. Briggs, 50 Ind. 346.

5. Title may be shown, as a defense, in a third person; but an outstanding mortgage is not title.-Johnson v. Cornet, 29 Ind. 59.

6. One who enters upon land, without claim or color of title, holds in subservience to the legal owner.-Buckley . Taggart, 62 Ind. 236.

7. In an action by one claiming a legal title to real estate to recover possession and quiet title thereof, a third person, claiming an equitable title, may properly be made a defendant.-Hampson v. Fall, 64 Ind. 382.