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SECTION. 1. [Who may appoint.]-The state auditor, treasurer, and librarian respectively, and each county clerk, treasurer, sheriff, and surveyor, may appoint a deputy, for whose acts he shall be responsible, and from whom he shall require a bond which appointment shall be in writing, and shall be revocable by writing under the principal's hand; and both the appointment and revocation shall be filed and kept in the office of the county clerk, in case of deputies for county officers, but. in case of state officers they shall be filed and kept by the principals. [R. S. 127. G. S. 343.]
SEC. 2. [Duties.]-In the absence or disability of the principal, the deputy shall perform the duties of his principal pertaining to his own office, but when an officer is required to act in conjunction with or in place of another officer, his deputy cannot supply his place.
SEC. 3. [Who may not be.]-The state auditor, treasurer, and librarian can neither of them appoint the other his deputy, nor can either the treasurer, sheriff, clerk, or surveyor of a county appoint either of the others.
SEC. 4. [Sheriff.]-The sheriff may appoint such number of deputies as he sees
SEC. 5. [Oath.]-Each deputy shall take the same oath as his principal, which shall be endorsed upon and filed with the certificate of his appointment.
SEC. 6. [Allowance.]—When a county officer receiving a salary and no fees is compelled by the pressure of the business of his office to employ a deputy, the county commissioners may make a reasonable allowance to such deputy.
SEC. 7. [Acknowledgments.]-Deputy clerks of the district and county courts in this state are hereby authorized to take acknowledgments of deeds and other instruments of writing in the name of their principals, and said acknowledgments shall be as legal and as valid as if taken by their principals. [1870, § 1, 17.]
SEC. 8. [Acts legalized.]—All deeds or other instruments of writing heretofore acknowledged in the usual form, before any deputy clerk of the district or county courts of any county in this state, shall be and they are hereby declared legal and valid. [Id. § 1.]
Chap. 24. This chapter embraced chap. XV, R. S., and "An act to authorize deputy clerks to take acknowledgments of deeds and other instruments, and to legalize acknowledgments already taken by the clerks." Laws 1870, 17; G. S. 343. Appointment of deputies to state officers. 25 Neb., 667.
CHAPTER 25.-DIVORCE AND ALIMONY.
SECTION 1. [Void marriages.]-Marriages which are declared void by section three of chapter 40, entitled "Marriages," are void without any decree of divorce. [R.S. 128. G. S. 344.]
SEC. 2. [Voidable marriage.]-In case of a marriage solemnized when either of the parties are under the age of legal consent, if they shall separate during such non-age, and not cohabit together afterwards, or in case the consent of one of the parties was obtained by force or fraud, and there shall have been no subsequent voluntary cohabitation of the parties, the marriage shall be deemed voidable.
SEC. 3. [Petition to annul marriage.]-When a marriage is supposed to be void, or the validity thereof is doubted, for any of the causes mentioned or referred to in the two preceding sections, either party, excepting in the cases where a contrary provision is hereinafter made, may file a petition in the district court of the county where the parties, or one of them, reside, for annulling the same, and such petition shall be filed, and proceedings shall be had thereon, as in the case of a petition filed in said. court for a divorce; and upon due proof thereof it shall be declared void by a decree or sentence of nullity.
SEC. 4. [Petition to affirm marriage.]—When the validity of any marriage shall be denied or doubted by either of the parties, the other may file a petition. in the manner aforesaid, for affirming the marriage, and upon due proof of the validity thereof it shall be declared valid by a decree or sentence of the court, and such decree, unless reversed on appeal, shall be conclusive upon all parties concerned.
SEC. 4 a. [Lien of judgment.]--All judgments and orders for payment of alimony or of maintenance in actions of divorce or maintenance shall be liens upon property in like manner as in other actions, and may in the same manner be enforced and collected by execution and proceedings in aid thereof, or other action or process as other judgments. [1883, chap. XL.]
SEC. 4 b. [Remedy cumulative.]-The remedy given by this act shall be held to be cumulative and in no respect to take away or abridge any subsisting remedy
DECISIONS.-Action is in nature of proceeding in rem. Affidavit for service by publication jurisdictional. After decree of divorce where service is had by publication, if defendant move to set aside decree and file answer, such answer, while constituting an appearance, does not make decree valid, and can only affect subsequent proceedings. 9 Neb. 202. Sec. 82, code, for opening judgments does not apply to actions for divorce. 10 Neb. 392. Affidavit for publication in suits for; what they should state. Id. 15 Neb. 615. Lunecessary in affidavit to set forth the particular cause upon which divorce is sought. 21 Neb. 391. Petition should show that plaintiff is a resident or that marriage was solemnized in state; affidavit need not. 10 Neb. 391. Denial in case stated, Held, Not a denial of cohabitation. 19 Neb. 714. Summons may be served in county other than that where action is brought. 10 Neb. 351. Evidence in case stated. Held, Insufficient to grant. 10 Neb. 144; 7 Id. 39; 15 Id. 454; 16 Neb. 16, 197. Held, Sufficient. 16 Neb. 453; 12 Id. 75; 20 Id. 529. Validity of marriage in case stated, Held, Sustained by the evidence. 24 Neb. 433. Husband not entitled to divorce on ground of abandonment if it appear that wife was compelled to leave him by reason of his cruel treatment. 25 Neb. 259. On ground of former husband living; evidence; presumption of death. 16 Neb. 553. Petition denied to wife, but granted to husband on his answer; evidence, Held, Insufficient for decree of permanent alimony. 10 Neb. 472. After entry of decree, notice that plaintiff would apply for suplemental decree served on attorney for defendant, Held, Not sufficient to bring defendant into court; but attorney applying forextension of time to prepare bill of exceptions, held, To be an appearance and waiver of service of notice. 13 Neb. 96. Appeal lies from decree granting divorce. 12 Neb. 73. The fact that incompetent evidence was admitted over the objection of the party complaining, will not require a reversal of the decree, if upon the whole case there was sufficient competent evidence admitted to sustain it. 21 Neb. 464. Order allowing alimony pendente lite cannot be taken by appeal or error to supreme court before judgment or decree granting or denying divorce. 18 Neb. 465. Original decree respecting alimony may be revised by supplemental decree; court has no power to decree conveyance of land. 13 Neb. 95. Nor to make alimony lien on real estate. 12 Neb. 212; 14 Id. 186. Alimony reduced in supreme court. 13 Neb. 273. Alimony allowed in supreme court. 7 Neb. 42; 12 Neb. 76, Question of alimony, after divorce, referred in supreme court. 16 Neb. 456. Wife entitled to dower. 17 Neb. 398. Conveyance by husband to defeat alimony; burden of proof. 18 Neb. 476. Decree rendered in supreme court. 19 Neb. 87. Application to modify decree may be reviewed on error. 19 Neb. 585. Fraudulent conveyance made by husband to wife, set aside after divorce, and, Held, Subject to lien for alimony. 20 Neb. 59. Fraudulent settlement of case by parties whereby attorney is deprived of his lien for fees set aside and amount found due ordered. paid into court by defendant. 22 Neb. 77. Provisions of section 4 a established the character of an order for payment of alimony with that of a judgment at law, and defendant cannot be committed for contempt upon failure to comply with such judgment. 23 Neb. 308. Conflicting testimony; finding of court below not disturbed. 7 Neb. 41. General denial is good plea to allegation of adultery; verdict of jury finding defendant not guilty conclusive; facts may be submitted to jury. 6 Neb. 306. Courts of general jurisdiction have power to set aside divorce ob. tained by fraud. 24 Neb. 554. Alimony on exparte divorce. 47 N. W. R. 1115.
or power of the court for the enforcement of such judgments and orders; Provided, Nothing in this act shall affect the title of any bona fide purchaser for value holding by reason of such bona fide purchase at the date of its
SEC. 5. [Repealed by 1875, 80. Supplied by sec. 6.]
SEC. 6. Jurisdiction of district court.]-A divorce from the bonds of matrimony may be decreed by the district court of the county where the parties, or one of them, reside, on the application by the petition of the aggrieved party in either of the following cases: First-When adultery has been committed by any husband or wife. Second-When one of the parties was physically incompetent at the time of the marriage. Third-When one of the parties has been sentenced to imprisonment in any prison, jail, or house of correction, for three years or more; and no pardon granted, after a divorce for that cause, shall restore such party to his or her conjugal rights. Fourth-Where either party shall willfully abandon the other without just cause, for the term of two years. Fifth-When the husband or wife shall have become an habitual drunkard. Sixth-When either party shall be sentenced to imprisonment for life; and no pardon shall effect a decree of divorce for that cause rendered. [Amended 1875, 79.]
SEC. 7. [Causes for.]-A divorce from the bonds of matrimony or from bed and board may be decreed for the cause of extreme cruelty, whether practiced by using personal violence, or by other means; or for utter desertion of either party for the term of two years; and a like divorce may be decreed, on complaint of the wife, when the husband, being of sufficient ability to provide suitable maintenance for her, shall grossly or wantonly, and cruelly refuse or neglect so to do.
SEC. 8. [Residence.]—No divorce shall be granted unless the complainant shall have resided in this state for six months immediately preceding the time of filing the complaint, or unless the marriage was solemnized in this state, and the applicant shall have resided therein from the time of the marriage to the time of filing the complaint.
SEC. 9. [Collusion.]-No divorce shall be decreed in any case when it shall appear that the petition therefor was founded in or exhibited by collusion between the parties, nor where the party complaining shall be guilty of the same crime or misconduct charged against the respondent.
SEC. 10. [Petition-Service-Witnesses.]-A petition or bill of divorce, alimony, and maintenance may be exhibited by a wife in her own name, as well as a husband; and in all cases the respondent may answer such petition or bill without oath ; and in all cases of divorce, alimony, and maintenance, when personal service cannot be had, service by publication may be made as is provided by law in other civil cases under the code of civil procedure; and either party may be a witness as in other civil cases. [Amended 1869, 28.]
SEC. 11. [Proceedings.]—Suits to annul or affirm a marriage, or for a divorce, shall be conducted in the same manner as other suits in courts of equity; and the court shall have the power to award issues, to decree costs, and enforce its decrees as in other
SEC. 12. [Alimony-Costs.]-In every suit brought, either for a divorce or for a separation, the court may in its discretion require the husband to pay any sum necessary to enable the wife to carry on or defend the suit during its pendency; and it may decree costs against either party, and award execution for the same; or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.
SEC. 13. [Restraint.]-After the exhibition of the petition in a suit to annul a marriage, or for a divorce, whether from the bonds of matrimony or from bed and board, the court may at any time, either in term or vacation, on the petition of the wife, prohibit the husband from imposing any restraint upon her personal liberty during the pendency of the cause.
SEC. 7. Evidence, Held, Sufficient to warrant decree on ground of extreme cruelty. 20 Neb. 587.
SEC. 12. Court may order husband to pay into court a reasonable sum of money, to enable wife to prosecute action, where she seeks modification of decree, alleged to have been obtained by fraud of husband. 19 Neb. 587. Action for maintenance only. 27 Neb. 277. Cited 29 Neb. -. 45 N. W. R. 466.
SEC. 14. [Custody of children.]-The court may in like manner, on the application of either party, make such order concerning the care and custody of the minor children of the parties, and their suitable maintenance, during the pendency of such suit, as shall be deemed proper and necessary, and for the benefit of the children.
SEC. 15. [Same.]-Upon pronouncing a sentence or decree of nullity of a marriage, and also upon decreeing a divorce, whether from the bonds of matrimony or from bed and board, the court may make such further decree as it shall deem just and proper concerning the care, custody, and maintenance of the minor children of the parties, and may determine with which of the parents the children or any of them shall remain.
SEC. 16. [Same.]-The court may from time to time, afterwards, on the petition of either of the parents, revise and alter such decree concerning the care, custody, and maintenance of the children, or any of them, and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children shall require.
SEC. 17. [Real estate.]-Whenever nullity of a marriage or a divorce from the bonds of matrimony for any cause shall be decreed, or when the husband shall be sentenced to imprisonment for life, and also upon every divorce from bed and board, the wife shall be entitled to the immediate possession of all her real estate in like manner as if her husband were dead. [Amended 1887, chap. 38.]
SEC. 18. [Same.]-Upon every such dissolution of a marriage, as is specified in the preceding section, and also upon every divorce from bed and board, the court may make a further decree for restoring to the wife the whole, or such part as it shall deem just and reasonable, of the personal estate that shall have come to the husband by reason of the marriage, or for awarding to her the value thereof, to be paid by her husband in money.
SEC. 19. [Trustees.]-Upon every divorce for adultery committed by the husband, and upon every divorce from bed and board for any cause, when any personal estate of the wife, or money in lieu thereof, shall be awarded to her, as provided in the preceding section, the court, instead of ordering the same to be delivered or paid into the hands of the wife, may order it to be delivered or paid into the hands of a trustee or trustees, to be appointed by the court, upon trust, to invest the same, and to apply the income thereof to the support and maintenance of the wife, and of the minor children of the marriage, or any of them, in such manner as the court shall direct.
SEC. 20. [Trustees to give bond.]-Such trustees shall also pay over the principal sum to the wife and children of the marriage, when ordered by the court, in such proportions and at such times as the court shall direct, regard being had in the disposition of said income, as well as of the principal sum, to the situation and circumstances of the wife and children; and the said trustees shall give such bonds as the court shall require for the faithful performance of their trust.
SEC. 21. [Examinaton of husband.]-Whenever the court shall think proper to award to the wife any of her personal estate, or any money in lieu thereof, in pursuance to the foregoing provisions, such court may require the husband to disclose, on oath, what personal estate has come to him, by reason of the marriage, and how the same has been disposed of, and what portion thereof still remains in his hands.
SEC. 22. [Alimony.]-Upon every divorce from the bonds of matrimony for any cause excepting that of adultery, committed by the wife, and also upon every divorce from bed and board, from any cause, if the estate and effects restored or awarded to the wife shall be insufficient for the suitable support and maintenance of herself and such children of the marriage as shall be committed to her care and custody, the court may further decree to her such part of the personal estate of the husband and such alimony out of his estate as it shall deem just and reasonable, having regard to the ability of the husband, the character and situation of the parties, and all other circumstances of the case.
SEC. 23. [Dower.]-When the marriage shall be dissolved by the husband being
SEC. 15. Application to modify decree of divorce may be reviewed on error. 19 Neb. 586.
SEC. 22. Alimony decreed, though divorce against wife. 26Neb. 318.
SEC. 23. If wife make no demand for dower, and court in making a division of the property of the husband in the nature of permanent alimony awards a sum in gross to her, it will bar her claim for dower, unless a contrary intent is shown in decree. 18 Neb. 395.
sentenced to imprisonment for life, and when a divorce shall be decreed for the cause of adultery committed by the husband, or misconduct or drunkenness of the husband, or on account of his being sentenced to imprisonment for a term of three years or more, the wife shall be entitled to her dower in his lands in the same manner as if he were dead; but she shall not be entitled to dower in any other case of divorce.
SEC. 24. [Rights of husband.]—When a divorce shall be decreed for the cause of adultery committed by the wife, the husband may hold such of her personal estate as the court shall deem just and reasonable under all the circumstances in the case, and the same shall be determined and decreed by the court at the time of the granting of such divorce. [Amended 1887, chap. 38.]
SEC. 25. [Repealed 1887, chap. 38.]
SEC. 26. [Security.]-In all cases where alimony or other allowance shall be decreed for the wife or for the children, the court may require sufficient security to be given by the husband for the payment thereof, according to the terms of the decree. And upon the neglect or refusal of the husband to give such security, or upon his failure to pay such alimony or allowance, his real or personal estate may be sold as upon execution for the payment of any sums due upon such decree. And in default of security for the payment of installments in future to fall due, the court may also appoint a receiver to take charge of his real or personal estate, or both, and hold the same, and the rents, issues, interests, and profits thereof, for security for the payment of installments in future falling due. And judgments and decrees for alimony or maintenance shall be liens upon the property of the husband, and may be enforced and collected in the same manner as other judgments of the court wherein they are rendered. [Amended 1883. chap. XLI. Took effect June 1, 1883.]
SEC. 27. [Decree.]-After a decree for alimony or other allowance for the wife and children, or either of them, and also after a decree for the appointment of trustees to receive and hold any property for the use of the wife or children, as before provided, the court may, from time to time, on the petition of either of the parties, revise and alter such decree respecting the amount of such alimony or allowance, or the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any decree respecting any of the said matters which such court might have made in the original suit.
SEC. 28. [Legitimacy of children.]-A divorce for the cause of adultery committed by the wife shall not affect the legitimacy of the issue of the marriage, but the legitimacy of such children, if questioned, may be determined by the court upon the proofs in the case; and in every case the legitimacy of all children begotten before the commencment of the suit shall be presumed until the contrary be shown.
SEC. 29. [Same.]-Upon the dissolution of a marriage on account of the non-age, insanity, or idiocy of either party, the issue of the marriage shall be deemed to be, in all respects, the legitimate issue of the parent who, at the time of the marriage, was capable of contracting.
SEC. 30. [Prior marriage.]—When a marriage is dissolved on account of a prior marriage of either, and it shall appear that the second marriage was contracted in good faith and with the full belief of the parties that the former wife or husband was dead, the fact shall be stated in the decree of divorce or nullity, and the issue of such second marriage, born or begotten before the commencement of the suit, shall be deemed to be the legitimate issue of the parent who, at the time of the marriage, was capable of contracting. SEC. 31.
the dissolution by decree or sentence of nullity of any marriage that is prohibited on account of consanguinity between the parties, or of any marriage between a white person and a negro, the issue of the marriage shall be deemed to be illegitimate.
SEC. 32. [Penalties.]-If any persons, after being divorced from the bonds of
SEC. 27. Authority of district court to award alimony. 19 Neb. 587.