to avoid the marriage. Such an action may also be maintained by the lunatic at any time after restoration to a sound mind; but in that case, the marriage should not be annulled if it appears that the parties freely cohabited as husband and wife after the lunatic was restored to a sound mind. § 1748. § 1138. Action to annul marriage by next friend of idiot Same, or lunatic. Where no relative of the idiot or lunatic brings an action to ani.ul the marriage, the court may allow an action for that purpose to be maintained at any time during the life-time of both the parties to the marriage, by any person as the next friend of the idiot or lunatic. But this section does not apply where the marriage might have been annulled at the suit of the lunatic, as prescribed in the last section. $1750. § 1139. Action to annul marriage on the ground of force, Same, duress or fraud. An action to annul a marriage on the ground that the consent of one of the parties thereto was obtained by force, duress or fraud may be maintained at any time by the party whose consent was so obtained. Such an action may also be maintained during the life-time of the other party by the parent or the guardian of the person of the party whose consent was so obtained, or by any relative of that party who has an interest to avoid the marriage. But a marriage shall not be annulled on the ground of force or duress if it appears that, at any time before the commencement of the action, the parties thereto voluntarily cohabited as husband and wife; or on the ground of fraud, if it appears that, at any time before the commencement thereof, the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud. § 1751. § 1140. Custody and maintenance of children. If a marriage Same, be declared a nullity or annulled, the court, by the judgment or by subsequent order, may award the custody of a child of the marriage to either party as the interests of the child require, and may make provision for his education and maintenance out of the property of either or both of its parents if the marriage shall have been declared a nullity, and out of the property of the guilty parent, if the marriage shall have been annulled. § 1752. § 1141. Action to annul a marriage on the ground of physi- Same, cal incapacity. An action to annul a marriage on the ground that one of the parties was physically incapable of entering into the marriage state may be maintained by the injured party against the party whose incapacity is alleged; or such an action Same, 1753, in part. Same, § 1753, In part. Same, in part. Same, § 1755, in part. Same, may be maintained by the party who was incapable against the other party, provided the incapable party was unaware of the incapacity at the time of marriage, or if aware of such incapacity, did not know it was incurable. Such an action can be maintained only where an incapacity continues and is incurable; and must be commenced before five years have expired since the marriage. § 1142. Jury trial in action to annul marriage. In an action to annul a marriage, except where it is founded upon an allegation of the physical incapacity of one of the parties thereto, the court, upon the application of either of the parties, must make an order directing the trial, by a jury of all the issues of fact; or, of its own motion, it may make an order directing the trial by a jury of one or more issues of fact; for which purpose, the questions to be tried must be prepared and settled. § 1143. Proof required for judgment by default in action to annul a marriage. In an action brought to annul a marriage, a final judgment annulling the marriage shall not be rendered by default for want of an appearance or pleading, or upon the trial of an issue, without proof of the facts upon which the allegation of nullity is founded. The declaration or confession of either party to the marriage is not alone sufficient as proof, but other satisfactory evidence of the facts must be produced. § 1144. Motion to vacate order allowing order allowing next friend to maintain action. A motion to vacate an order allowing a person to maintain an action to annul a marriage as next friend of an infant, idiot or lunatic must be made at a term held by the judge who granted it, unless he is dead, out of office or unable to hear it by reason of sickness or otherwise; or unless he expressly directs it to be heard at a term held by another judge. § 1145. Dismissal of complaint in action by next friend to annul a marriage. Where an order has been granted allowing the next friend of an infant, idiot or lunatic to maintain an action annulling a marriage, the court to which application for final judgment is made nevertheless may dismiss the complaint if justice so requires, although, in a like case, the party to the marriage, if plaintiff, would be entitled to judgment. con § 1146. Judgment annulling a marriage; how far clusive. A final judgment, annulling a marriage rendered dur ing the life-time of both the parties is conclusive evidence of the invalidity of the marriage in every court of record or not of record, in any action or special proceeding, civil or criminal. Such a judgment rendered after the death of either party to the marriage is conclusive only as against the parties to the action and those claiming under them. ARTICLE 68 ACTION FOR A DIVORCE Section 1147. Action for absolute divorce. 1148. When answer must be verified in action for divorce. 1150. Proof in action for divorce. 1151. Co-respondent as party in action for divorce. divorce. 1153. When divorce denied, although adultery proved. wife. 1155. Maintenance and support of wife and children in 1156. Property rights in action for divorce by wife. husband. 1158. Property rights in action for divorce by husband. 1160. Insurance upon dissolution of marriage. Code of cedure. § 1147. Action for absolute divorce. In either of the fol Source.— lowing cases, a husband or a wife may maintain an action against civil prothe other party to the marriage to procure a judgment divorcing § 1756. the parties and dissolving the marriage by reason of the defendant's adultery: 1. Where both parties were residents of the state when the offence was committed. 2. Where the parties were married within this state. 3. Where the plaintiff was a resident of the state when the offence was committed and is a resident thereof when the action is commenced. 4. Where the offence was committed within the state and the injured party when the action is commenced is a resident of the state. Same, $ 1757, in part. Same, § 1757, in part. Same, § 1757, in part. Same, § 1757, in part. Same, § 1757, in part. § 1148. When answer must be verified in action for divorce. The answer of the defendant in an action for divorce may be made without verifying it, notwithstanding the verification of the complaint, except that an answer containing a counterclaim which charges adultery must be verified in respect of such counterclaim where the complaint is verified. § 1149. Jury trial in action for divorce. If the answer in an action for divorce puts in issue the allegation of adultery, the court must upon the application of either party, or it may of its own motion, make an order directing the trial by a jury of that issue; for which purpose the questions to be tried must be prepared and settled. § 1150. Proof in action for divorce. If the answer in an action for divorce does not put in issue the allegation of adultery, or if the defendant makes default in appearing or pleading, the plaintiff before he is entitled to judgment must nevertheless satisfactorily prove the material allegations of his complaint and also, by his own testimony or otherwise, that there is no judgment or decree in any court of the state of competent jurisdiction against him in favor of the defendant for a divorce on the ground of adultery. § 1151. Co-respondent as party in action for divorce. In an action brought to obtain a divorce on the ground of adultery, the plaintiff or defendant may serve a copy of his pleading on the co-respondent named therein. At any time within twenty days after such service on said co-respondent, he may appear to defend such action so far as the issues affect such co-respondent. If no such service be made, then at any time before the entry of judgment any co-respondent named in any of the pleadings shall have the right to appear either in person or by attorney in said action and demand of plaintiff's attorney a copy of the summons and complaint, which must be served within ten days thereafter, and he may appear to defend such action so far as the issues affect such co-respondent. § 1152. Costs in favor of co-respondent in action for divorce. In an action for divorce where a co-respondent has appeared and defended, in case no one of the allegations of adultery controverted by such co-respondent shall be proved, such corespondent shall be entitled to a bill of costs against the person naming him as such co-respondent, which bill of costs shall consist only of the sum now allowed by law as a trial fee, and dis bursements, and such co-respondent shall be entitled to have an execution issue for the collection of the same. § 1758. § 1153. When divorce denied, although adultery proved. Same, In either of the following cases, the plaintiff is not entitled to a divorce, although the adultery is established: 1. Where the offence was committed by the procurement or with the connivance of the plaintiff. 2. Where the offence charged has been forgiven by the plaintiff. The forgiveness may be proved, either affirmatively, or by the voluntary cohabitation of the parties with the knowledge of the fact. 3. Where there has been no express forgiveness, and no voluntary cohabitation of the parties, but the action was not commenced within five years after the discovery by the plaintiff of the offence charged. 4. Where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce. Same, § 1154. Legitimacy of children in action for divorce by § 1759, wife. Where the action for divorce is brought by the wife, the in part. legitimacy of any child of the marriage, born or begotten before the commencement of the action, is not affected by the judgment dissolving the marriage. § 1759, § 1155. Maintenance and support of wife and children in Same, action for divorce by wife. The court, in the final judgment in part. dissolving the marriage in an action for divorce brought by the wife, may require the defendant to provide suitably for the education and maintenance of the children of the marriage, and for the support of plaintiff, as justice requires, having regard to the circumstances of the respective parties; and, by order, upon the application of either party to the action, and after due notice to the other, to be given in such manner as the court shall prescribe, at any time after final judgment whether heretofore or hereafter rendered, may annul, vary or modify such a direction. But no such application shall be made by a defendant unless leave to make the same shall have been previously granted by the court by order made upon or without notice as the court in its discretion may deem proper after presentation to the court of satisfactory proof that justice requires that such an application should be entertained. $ 1759. § 1156. Property rights in action for divorce by wife. Same, If, in an action for divorce brought by the wife, when final in part. |