and on behalf of the heirs at law, to the purchaser or purchasers which shall recite the order, and be as binding on the heirs at law, and all other persons interested, as if it or they had been made by the deceased in his lifetime. [Id. § 3.] MISCELLANEOUS PROVISIONS. SEC. 336. [Death, etc., of executor.]-When an executor or administrator shall die, be removed from office, or resign, or when his letters shall be revoked during the pendency of any suit in which he is a party, the suit may be prosecuted by or against the executor or administrator appointed in his place, if any shall be appointed, in like manner as if it had originally been commenced by or against such last executor or administrator. [1869, § 1, 169. G. S. 342.] SEC. 337. [Foreign executor.]-An executor or administrator duly appointed in any other state or county may commence and prosecute any action or suit in any court in this state, in his capacity of executor or administrator, in like manner and under like restrictions as a non-resident may be permitted to sue; Provided, That in case any executor or administrator shall have been appointed in this state, such person only shall be entitled to commence and prosecute actions or suits within this state in his capacity as such executor or administrator. [Amended 1885, chap. 48.] SEC. 338. [Appeal by executor, no bond required.]—Every executor or administrator who may have given bond in this state, with surety agreeably to law, shall be authorized, in all cases of appeal from one court to another, by him made, to prosecute the same without filing an appeal bond, such appeal to be prosecuted to the district court as appeals are now taken from courts of justices of the peace. [G. S. § 3, 342.] SEC. 339. [Jurisdiction of judge at chambers.]-The judge of the district court of the state may, upon the application of an executor, administrator, or guardian, to sell or dispose of the real estate of decedents, spendthrifts, or minors, hear and determine the same at chambers in vacation; Provided, That in all cases where the judge shall order a sale of any real estate, while sitting at chambers, he shall make out in writing a copy of said order, and cause the same to be filed in the office of the clerk of said court, and said clerk shall thereupon record said order, in the record book of said court, before any sale shall be made as aforesaid. [Id. § 4.] SEC. 340. [Sale of partnership property.]-The county court which shall have issued letters testamentary or of administration upon the estate of a deceased partner may, upon due notice to all parties interested, authorize the executor or administrator of such deceased partner to sell at public auction his interest in the partnership property, and the surviving partner may be a purchaser at such sale the same as any disinterested party. The administrator or executor making such sale shall report his proceedings thereon to the court, and upon due notice to all persons interested, the court may confirm the sale, or, good reason therefor appearing, may set the same aside and order another sale. The court shall also direct the execution of such paper titles to the property sold as the circumstances require. [1883, § 1, chap. XXXIX.] SEC. 341. [Accounting.]—The executor or administrator making such sale shall account for the partnership interest so sold at the price at which it shall be sold. [Id. § 2.] SEC. 342. [Settlement.]-The executor or administrator of a deceased partner shall settle with the surviving partner all the dealings and transactions of the partnership as well as those remaining unsettled before the death of the deceased partner, as of the said parties thereafter, and shall present to the county court appointing such executor or administrator a full statement of the matter and manner of such settlement, and SEC. 336. "An act in reference to executors and administrators and probate judges, and for disposing of the real estate of decedents, spendthrifts, or minors." Laws 1869, 169. SEC. 337. If the plaintiff in a suit under this provision dle, and the cause of action survive, the suit may be revived in the name of his executor or administrator. 6 Neb. 522. SEC. 339. Cited 34 Neb., 833. SECS. 340-343. "An act providing for selling the interests of a deceased partner and settling the accounts between him and his surviving partners." Took effect Feb. 28, 1883. upon due notice to all parties interested, the said court shall examine, review, correct, approve, or dissalow such settlement. But if the said legal representatives of such deceased partner and the surviving partner cannot agree upon such settlement, the accounts of the dealings and transactions of the partnership shall be settled as heretofore. [Id. § 3.] SEC. 343. [Special administrator.]—In case the executor or administrator of a deceased partner be also his surviving partner, the county court appointing him shall appoint a special administrator to discharge the duties herein provided, and his powers shall be limited thereto. Such appointment shall be made upon the same proceedings as are provided by law for the appointment of special administrators, when there is delay in the granting general letters testamentary or of administration. [Id. § 4.] SEC. 344. [Mortgaging real estate of intestate.]-The county judge upon proper showing by petition supported by competent testimony, showing that the best interest of the estate demand it, grant authority to the administrator of intestate estates, and guardians of estates of minor children to mortgage any real estate belonging to such estates, where mortgages existing on such real estate are due, or are about to become due, and there is no money belonging to such estate with which to pay or redeem such mortgage; Provided, That in no instance shall authority be granted by such county judge to such administrator, or guardian, to mortgage such real estate for a greater sum than the amount secured by the original mortgage. [1887, § 1, chap. 37. Amd. 1893, chap. 17.] SEC. 345. [Same-Special administrator.]-That where no administrator has been appointed the county judge may appoint a special administrator to carry out the provisions contained in section one of this act. [Id., § 2.] SECS. 344-345. "An act to permit county judges to grant authority to administrators of intestate estates to mortgage real estate for certain purposes, and, if necessary, appoint special administrator thereof." Laws 1887, chap 37. Took effect April 2, 1887. CHAPTER 24.-DEPUTIES. 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. fit. 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. County, obligee in deputy sheriffs' bond. 34 Neb., 666. SEC. 4. Deputy sheriffs must be residents. See sea. 245, n. n. 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 liéns 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. Unnecessary 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 for extension of time to prepare bill of exceptions, eld, 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 Ncb. 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 obtained by fraud. 24 Neb., 554. Alimony on exparte divorce. 31 Id., 386. 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 passage. 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 cases. 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. 537. SEC. 12. Court may order husband to pay into court a reasonable sum of money, to enable wife to prosecute ction, 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., 457. Remedy exclusive. 31 Id., 781. |