1050. (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.

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

This section is enacted on the ground that the public has some interest in the marriage relation. Scott v. Scott, 17 Ind. 309.

If the defendant appears after the prosecutor has filed an answer, such answer may be stricken out. State v. Brinneman, 120 Ind. 357.

1051. (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.

The answer can not take the place of proof on the part of the plaintiff. Scott v. Scott, 17 Ind. 309.

The causes alleged in the petition must be sustained by proof. McCulloch v. McCulloch, 8 Blkf. 60.

1052. (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.

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

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

A divorce may be granted on a cross-petition on the evidence of the plaintiff. Glasscock v. Glasscock, 94 Ind. 163.

When both parties seek a divorce the finding and decree should specify to which one it is granted. Gullett v. Gullett, 25 Ind. 517.

1053. (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.

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

The answers of parties to interrogatories filed with the pleadings can not be used as evidence. Simons v. Simons, 107 Ind. 197; Barr v. Barr, 31 Ind. 240.

1054. (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.

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. Harrell v. Harrell, 39 Ind. 185; Musselman. Musselman, 44 Ind. 106.

Where the wife has sufficient means the husband can not be required to furnish her money to prosecute or defend the suit. Kenemer v. Kenemer, 26 Ind. 330.

An allowance to the wife for expenses includes her attorney's fees, and is conclusive between her and her attorneys. McCabe v. Britton, 79 Ind. 224.

The supreme court will only review the action making an allowance to the wife when there is an abuse of discretion by the lower court. Henderson v. Henderson, 110 Ind. 316; Gruhl v. Gruhl, 123 Ind. 86.

The merits of the petition for a divorce can not be investigated upon the application of the wife for an allowance pending the suit. Gruhl v. Gruhl, 123 Ind. 86.

If the husband fails to comply with the order of the court he may be attached without previous notice, and unless he shows cause he may be imprisoned until the order is complied with. Kernodle v. Cason, 25 Ind. 362.

On a final disposition of the suit, the court should order the husband to pay the expenses of the wife. Musselman v. Musselman, 44 Ind. 106.

During the pendency of an appeal the supreme court can not require the husband to contribute to the support of the wife. Kesler v. Kesler, 39 Ind. 153.

An appeal lies from an order made under this section. Gruhl v. Gruhl, 123 Ind. 86; Traylor v. Richardson, 2 App. 452.

A dismissal of the suit will not deprive attorneys, to whom an allowance has been made, of their right to enforce the order. Traylor v. Richardson, 2 App. 452.

1055. (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.

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

If lands are held by the parties as joint tenants, a divorce does not affect such tenancy. Lash v. Lash, 58 Ind. 526.

1056. (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.

1057. (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.

The amount of alimony to be allowed is much in the discretion of the court, and depends upon the facts of each case. As to the amount proper to be allowed under various circumstances, see Rourke v. Rourke, 8 Ind. 427; Hedrick v. Hedrick, 28 Ind. 291; Conner v. Conner, 29 Ind. 48; Ifert v. Ifert, 29 Ind. 473; Bush v. Bush, 37 Ind. 164; Garner v. Garner, 38 Ind. 139; Graft v. Graft, 76 Ind. 136; Metzler v. Metzler, 99 Ind. 384; Hedrick v. Hedrick, 128 Ind. 522.

The court should take into consideration the separate property of the wife. Morse v. Morse, 25 Ind. 156.

The interest of the wife in the property of the husband should also be considered. Musselman v. Musselman, 44 Ind. 106.

And proof should be heard of the amount and value of the property of the husband. Glasscock v. Glasscock, 94 İnd. 163.

If a wife does not ask for alimony, no question as to the property conveyed to her by the husband can be investigated. Stultz v. Stultz, 107 Ind. 490.

The supreme court will only interfere as to the amount of alimony allowed when it appears that the lower court has abused its discretion. Powell v. Powell, 53 Ind. 513; Conn v. Conn, 57 Ind. 323; Simons v. Simons, 107 Ind. 197; Henderson v. Henderson, 110 Ind. 316.

The supreme court on appeal may modify the decree as to alimony. Rice v. Rice, Ind. 100; Hyatt v. Hyatt, 33 Ind. 309; Graft v. Graft, 76 Ind. 136.

Decrees for alimony must be payable in money. Rice v. Rice, 6 Ind. 100. Alimony may be made payable in installments, and the court may direct how the same shall be secured. Rourke v. Rourke, 8 Ind. 427; Ifert v. Ifert, 29 Ind. 473. Deferred payments do not draw interest until due, unless the decree provides otherwise. Winemiller v. Winemiller, 114 Ind. 540.

Courts may modify decrees of alimony upon proper application. Ewing v. Ewing, 24 Ind. 468.

Alimony can only be allowed when a divorce is granted. Moon v. Baum, 58 Ind. 194. An agreement of the parties as to alimony is not binding unless confirmed by the court. Muckenberg v. Holler, 29 Ind. 139; Moon v. Baum, 58 Ind. 194.

Personal judgments for alimony can nɔt be taken when the defendant is only constructively summoned. Beard v. Beard, 21 Ind. 321; Lytle v. Lytle, 48 Ind. 200; Sowders v. Edmunds, 76 Ind. 123.

If the same parties are twice divorced, alimony may be allowed in each case. Brenner v. Brenner, 48 Ind. 262.

Alimony unpaid at the death of the wife may be collected by her administrator. Miller v. Clark, 23 Ind. 370.

No property is exempt from sale on execution on a judgment for alimony. Menzie v. Anderson, 65 Ind. 239.

A decree for alimony is an adjustment of all property rights between the parties. Muckenberg v. Holler, 29 Ind. 139; Behrley v. Behrley, 93 Ind. 255; Rose v. Rose, 93 Ind. 179; Nicholson v. Nicholson, 113 Ind. 131.

Alimony may be granted to the wife when a divorce is granted to the husband. Coon v. Coon, 26 Ind. 189; Hedrick v. Hedrick, 28 Ind. 291.

On granting alimony the husband may be enjoined from transferring his property until the judgment is paid. Rourke v. Rourke, 8 Ind. 427.

1058. (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.

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; Musselman v. Musselman, 44 Ind. 106; Dubois v. Johnson, 96 Ind. 6.

The court is not imperatively bound to require the father to contribute to the support of children whose custody is given to the mother. Conn v. Conn, 57 Ind. 323.

The estate of the husband and his ability to earn money should be considered in making provision for the support of the children. Logan v. Logan, 90 Ind. 107.

The order of the court as to the custody of the children is binding upon the parties until the same is modified or set aside. Williams v. Williams, 13 Ind. 523; Sullivan v. Learned, 49 Ind. 252; Leming v. Sale, 128 Ind. 317.

Unless there is a reservation in the order as to the custody of children of a right to alter it, the court can not afterwards change it. Sullivan v. Learned, 49 Ind. 252. See Ewing v. Ewing, 24 Ind. 468.

The order as to the custody of the children can only be changed for causes thereafter occurring. Dubois v. Johnson, 96 Ind. 6.

The order as to the custody of children does not absolutely settle the future.rights of the parties as to the same. Bryan v. Lyon, 104 Ind. 227.

When the court has the power it may set aside a former order as to the custody of children and award the same to the other party. Ryce v. Ryce, 52 Ind. 64.

Change of residence of the parties does not deprive the court of power to change an order as to the custody of the children. Baily v. Shrader, 34 Ind. 260.

Violation of an order as to the custody of children does not give the other party a right to such custody. Joab v. Sheets, 99 Ind. 328.

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 Ind. 323; Ramsey . Ramsey, 121 Ind. 215.

1059. (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.

A decree for alimony must be payable in money. Rice v. Rice, 6 Ind. 100. Deferred payments do not draw interest until due, unless the decree provides otherwise. Winemiller v. Winemiller, 114 Ind. 540.

1060. (1048.) Effect of divorce.-23. The divorce of one party shall fully dissolve the marriage contract as to both.

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

Where both parties apply for a divorce the decree should specify to which one it is granted. Gullett v. Gullett, 25 Ind. 517.

1061. (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.

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

0.

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.

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.

A divorce here may be granted for a cause originating in another state. Wilcox t. Wilcox, 10 Ind. 436.

SEC.

1062. Action for possession.

ARTICLE 38.-EJECTMENT.

1063. Landlord, when substituted - No

tice.

1064. Landlord, when bound. 1065. Service upon agent, when. 1066. Contents of complaint. 1067. Answer in denial-Effect.

1068. Proof of defendant's possession, when needless.

1069. Plaintiff must show title.

1070. Use of premises-Recovery forLimit.

1071. When plaintiff recovers damages only.

1072. Recovery, separate or joint, according to rights.

1073. Damages and set-off. 1074. Exemplary damages. 1075. Proof against co-tenant. 1076. New trial of right-Bond. 1077. New trial after term. 1078. Innocent purchasers. 1079. Damages in lieu of land.

SEC.

1080. Entry and survey.
1081. Order and service.
1082. Action to quiet title.

1083. Quieting title and partition-Rules
applicable.

1084. Disclaimer-Costs.

1085. Recording proceedings in recorder's
office.

1086. Real party in interest to be plaintiff.
1087. Occupying claimant.
1088. Complaint-Contents.
1089. Issue Trial-Assessment.
1090. Plaintiff's election.
1091. Defendant's election.

1092. When to be tenants in common.
1093. Color of title.

1094. What is color of title.

1095. Occupant recovers for lasting im

provements.

1096. Writ of possession.

1097. Defective sales-When no writ of possession.

1098. Adjustment of amount due.

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

1062. (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.

A tenant at will may maintain an action of ejectment. Buntin v. Doe, 1 Blkf. 26. A tenant under a lease may recover possession of the lands from the landlord. Huffman v. Starks, 31 Ind. 474.

If the owner of lands forcibly ejects a person in possession under a claim of right, such person may recover possession by suit. Judy v. Citizen, 101 Ind. 18.

Tenants in common may sue to recover lands from their co-tenants. Elliott v. Frakes, 71 Ind. 412; Vance v. Schroyer, 77 Ind. 501; Frakes v. Eliiott, 102 Ind. 47.