where the matter has been fully disposed of before the criticism was published. Zuver v. State, 188 Ind. 60, 121 N. E. 828.

Under this section and sections 2182, 2188, in proceeding for contempt of court, it was held there was no abuse of discretion by the trial court in sentencing defendant to pay a fine of $500 without imprisonment, if such fine and costs were paid immediately, or to imprisonment until the final costs were paid. Ramer v. State, Ind. 128 N. E. 440.

1047. Indirect contempt, rule to show cause.

The sufficiency of an information for an indirect contempt is questioned by a motion to discharge the rule to show cause. Holler v. State, 182 Ind. 268, 106 N. E. 364.

In view of this section, the jurisdiction of the court to punish for an indirect contempt of its authority in disobeying by filing an affidavit of the plaintiff in the case in which the restraining order was entered. Ramer v. State, Ind. 128 N. E. 440.

1048. Proceedings, decision, appeal.

If a defendant appeals from a judgment imposed for a contempt, he can not first attack the sufficiency of the information by an assignment of error in the supreme court. Holler v. State, 182 Ind. 268, 106 N. E. 364.

If either party is insane or idiotic at the time of a marriage the marriage is void. Huffman v. Huffman, 51 App. 330, 99 N. E. 769.

1060. Marriages voidable, issue legitimate.

The validity of a marriage can not be questioned in a suit for the partition of land inherited from one of the parties. Bruns v. Cope, 182 Ind. 289, 105 N. E. 471. The words "want of age or understanding" in this section must be held to refer only to that want of understanding which is presumed to belong to a child under the minimum age of marriage and not to marriages of insane persons. Wiley v. Wiley, App. 123 N. E. 252.

To the extent that this section relates to the matter of void marriages it is purely remedial and is not intended to prevent the courts from granting relief from the presumptive consequences of void marriages in whatever form and between whatever parties the matter may be presented. Wiley v. Wiley, App. 123 N. E. 252.

1066.

Petition for divorce, residence, affidavit.

A petition for divorce must allege that the plaintiff has been a resident of the state and county for the length of time that is specified by statute. Miller v. Miller, 55 App. 644, 104 N. E. 588.

If a petitioner for divorce does not file with his petition for a divorce an affidavit as to his residence as required by statute, the judgment granting a divorce can not be attacked collaterally. Beavers v. Bess, 58 App. 287, 108 N. E. 266.

See note to section 498.

In view of this section and sections 476, 498, where plaintiff in divorce filed an affidavit of residence, verified before a notary in another state, and objection was made for first time on appeal that plaintiff did not comply with section 1056, the circuit court of this state had jurisdiction. Smith v. Smith, App. 110 N. E. 1013.

The affidavit of residence required by this section in divorce proceedings is jurisdictional, and can not be waived by either party. Smith v. Smith, 185 Ind. 75, 113 N. E. 296.

An affidavit in a suit for divorce, which recited that affiant was the plaintiff in the suit, and had been a resident of the state for more than five years, and had resided in a certain city at a named address for more than six months, and that his occupation was that of assembler, was held not in substantial compliance with this section. Hoffman v. Hoffman, App., 119 N. E. 18.

Under this section a decree for divorce based on an insufficient affidavit will be reversed. Hoffman v. Hoffman, App. 119 N. E. 18.

1070. Summons and service.

The defendant in a suit for divorce can not by a written agreement waive the issuing and service of a summons, and agree to enter her appearance to the action, and a decree of divorce rendered without any other notice or an appearance by the defendant is void. Friebe v. Elder, 181 Ind. 597, 105 N. E. 151.

1071. Notice by publication, copy, when mailed.

If a defendant in a divorce suit who is a resident of the state is notified by publication, the decree will not be held void in a collateral proceeding when it is not shown by the record that a summons was not issued and served on the defendant and that he did not have notice of the pendency of the action. Beavers v. Bess,

58 App. 287, 108 N. E. 266.

[Acts 1913, p. 76. In force April 30, 1913.]

1072. Issue and trial.

--

This section Revision of 1914, being section 13, acts 1873, p. 107, is void. Panty v. Panty, App. 129 N. E. 283. See section 540 Revision of 1914 being section 1, acts 1883, p. 199, amending section 367, acts 1881, p. 240, which repealed section 13, acts 1873, p. 107.

1079. Witnesses, depositions.

Parties to a divorce suit are competent witnesses in their own behalf, and when

the plaintiff possesses the qualifications required by statute he may be one of the resident witnesses that the statute requires. Miller v. Miller, 55 App. 644, 104 N. E. 588.

1080. Interlocutory orders, allowances pending suit.

In actions for divorce allowances may be made to the wife whether she be a plaintiff or defendant, but it should be made to appear before an allowance is made that she does not have sufficient means for her adequate support and to pay the expenses of prosecuting or defending the action; and it should also appear that the husband is able to pay the allowance. Snider v. Snider, 179 Ind. 583, 102 N. E. 32. It is the duty of the court on decreeing a divorce to a wife to require the husband to pay the reasonable fee of the wife's attorney. Ginter v. Ginter, 56 App. 98, 104 N. E. 989.

This section must be strictly complied with in awarding an attorney's fee in a divorce suit. Fites v. Fites, 62 App. 396, 112 N. E. 39.

In view of sections 1080, 1084, 1088, 2635a, 2635c-2635g in an action for support by the wife under section 7869 et seq., the judgment may be only against the property of the husband. Bottorff v. Bottorff, - Ind. 129 N. E. 478.

1083. Alimony.

Courts on decreeing a divorce should allow such alimony as may be just, but the amount of such allowance is to be determined by the facts in each case, and in determining the question the court may inquire into the circumstances of the parties, the amount of property owned by the husband and his income and ability to pay. Huffman v. Huffman, 53 App. 201, 101 N. E. 400.

The general authority under this section to decree alimony in a divorce proceeding, is held broad enough to warrant a decree for alimony to a wife whose adulterous acts contributed to the husband's estate. Fites v. Fites, 62 App. 396, 112 N. E. 39.

The authority given by statute to courts that decree divorces to make orders for the custody, support and education of the children of the parties continues until such children become of age, and when an application is made for a modification of such an order, no change of venue from the county can be taken. Julian v. Julian, 60 App. 520, 111 N. E. 196.

In granting a decree of divorce and awarding the custody of children to the mother and ordering the father to pay a certain sum for their support, the court has jurisdiction of such children until they become of age, and may change or make a new order if their welfare demands it. Julian v. Julian, 60 App. 520, 111

N. E. 196.

See note to sections 422a, 1080.

Under this section a divorced father of minor children who are in the custody of their mother, may be required to contribute to their support. Bottorff v. Bottorff, Ind. 129 N. E. 478.

1088. Decree for alimony, how payable.

If a decree granting alimony in a suit for divorce provides that the alimony may be paid by instalments if surety is given for such payment, and there is no provision as to the approval of the surety, the surety may be taken and approved as is provided by statute for the approval of replevin bail for the stay of execution on ordinary judgments. Laufer v. Laufer, 61 App. 508, 112 N. E. 106.

Where a decree of divorce in favor of the wife is silent as to security for the payment of alimony in instalments, this section, requiring security for payment of such instalments, will be read into the decree. Laufer v. Laufer, 61 App. 508, 112 N. E. 106.

An allowance of alimony should be in a gross sum and may be made payable monthly with interest thereon. Runyan v. Runyan, App. 126 N. E. 35.

See note to section 1080.

1092. Alimony, sale of property, children.

An alimony with decree for a limited divorce may be made payable in monthly instalments, this section not requiring the personal judgment in a sum in gross. Goldberg v. Goldberg, App., 126 N. E. 36.

In an action of ejectment, there must be proof and a finding that the plaintiff is entitled to the possession of the land to support a judgment in his favor. Jose v. Hunter, 60 App. 569, 103 N. E. 392, 852.

1100. Complaint, contents.

Complaints in actions of ejectment are good if they state in substance the matters required by the statute. Laramore v. Blumenthal, 58 App. 597, 108

N. E. 602.

An allegation, in an action in ejectment, of plaintiff's right to possession and the finding of such fact, is essential to warrant a conclusion of law that he is entitled to recover the property. Wilson v. Jinks, 63 App. 615, 115 N. E. 67.

1101. Answer in denial, effect.

The defense of fraud may be proved under an answer of general denial, but such defense must be established by a preponderance of the evidence. Robison etc. Co. v. Stalcup, 58 App. 370, 106 N. E. 395.

Since by this section all defenses legal or equitable in action to quiet title may be made under general denial, error can not be predicated on action of court in sustaining the demurrer in an action to quiet title, to a paragraph of the answer, another paragraph containing a general denial. Sheehan Const. Co. v. Kuhn, App., 123 N. E. 442.

1103. Plaintiff must show title.

In actions of ejectment the plaintiff must recover, if at all, on the strength of his own title. White v. Suggs, 56 App. 572, 104 N. E. 55; Jose v. Hunter, 60 App.

569, 103 N. E. 392, 852; State v. Tuesburg Land Co., 61 App. 555, 109 N. E. 530, 111 N. E. 342.

Plaintiff in suit to quiet title must prove his own title although the defendant failed to show title. Beck v. Miller, App. 121 N. E. 281.

1104. Use of premises-Recovery for-Limit.

In ejectment the measures of damages is the value of use and occupation and not the value of the property. Vandalia R. Co. v. Topping, App. 126 N. E. 485.

1108. Exemplary damages.

Exemplary damages can not be awarded in an action of ejectment where defendant believed it was acting under a valid right. Vandalia R. Co. v. Topping, 62 App. 657, 113 N. E. 421.

1110. New trial.

Decisions construing the statute granting new trials as a matter of right before the amendment of the statute by the act of 1913. Studabaker v. Alexander, 179 Ind. 189, 100 N. E. 10; Gilchrist v. Hatch, 183 Ind. 371, 106 N. E. 694; Grubb v. Brendell, 52 App. 531, 100 N. E. 872; Henry v. Frazier, 53 App. 605, 100 N. E. 770; Follette v. Anderson, 56 App. 524, 105 N. E. 793; Gates v. Sweet, 58 App. 689, 108 N. E. 881.

1116. Action to quiet title.

While actions to quiet title are of equitable origin, they exist in this state by virtue of the statute and are triable by jury. Macy v. Wood, 49 App. 469, 97 N. E. 553.

[Acts 1915, p. 649. In force April 26, 1915.]

1116b. Defect in title, proceedings to quiet.-1. That in all proceedings, suits or actions brought in any of the courts of this state to quiet or determine the title to real estate situated within this state, or any specific interest therein, or to obtain the title or possession thereof, or to make partition thereof, or by any executor or administrator to sell the same to make assets to pay the debts of any decedent, or to enforce or foreclose any mortgage or other lien thereon, and where there is any break or hiatus in the record title thereof or where there exists a defect or an apparent defect in or cloud upon the title to such real estate on account of defective or inaccurate descriptions thereof appearing in any matter of record affecting the title to said real estate or where it does not appear of record that a grantor or mortgagor was unmarried at the time of executing any deed or mortgage pertaining to said real estate, or where it appears from the records that any deed, will, mortgage, or other instrument affecting said real estate was not properly executed, or that a mortgage, vendor's lien or other lien or encumbrance affecting said real estate has not been properly or duly released as disclosed by the public records of the county wherein said lands are situated by reason whereof some doubt may be alleged or arise as to the complete validity of the