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The next action taken by the board was entertaining the petition, and making the order appointing the viewers and surveyor. In construing this section 5092, this court, in Mil. lion v. Board etc. 89 Ind. 5, said:
"The presentation of this petition called into exercise »the jurisdiction of the county board, and required the board to determine the question of the sufficiency of the petition, in form and substance, and whether or not such pe tition was signed by the requisite number of landholders, whose lands would be assessed for the cost of the proposed improvement, and every other fact, precedent or concurrent necessary to the granting of the prayer of the petition.” To the same effect we cite Stoddard v. Johnson, 75 Ind. 20; McEneney v. Town of Sullivan, 125 Ind. 407; Loesnitz v. Seelinger, 127 Ind. 422.
The conclusion seems irresistible that action of the board was judicial, and not merely ministerial,
The maxim that no man should be a judge in his own case is so well established, both in reason and by authority, that it needs neither argument nor the citation of adjudged cases in its support. The effect to be given an adjudication rendered by a disqualified tribunal is another and a more trouble some question.
A judgment rendered by a court where the judge is disqualified must necessarily be either void or voidable. If void, it
may be disregarded and treated as if it had never been rendered. It would be no protection to officers acting under it. If, on the contrary, such a judgment is not void, but merely voidable, it will protect persons lawfully acting under it, and will be given full force and effect as a valid and subsisting judgment until reversed or set aside on appeal, or other apo propriate method of direct attack.
The decided weight of authority seems to establish the proposition that, at common law, the acts of a disqualified judge are not mere nullities; they are liable to be avoided or reversed on proper application, but cannot be impeached col. laterally: Dimes v. Grand Junction Canal, 3 H. L. Cas. 759 (785); State v. Crane, 36 N. J. L. 394; Fowler v. Brooks, 64 N. H. 423; 10 Am. St. Rep. 425; Trawick v. Trawick's Admrs., 67 Ala. 271; Moses v. 94 Julian, 45 N. H. 52; 84 Am. Dec. 114; Rogers v. Felker, 77 Ga. 46; Hine v. Hussey, 45 Ala. 496 (513); 1 Black on Judgments, sec. 174; Freeman on Judgments, sec, 145; Wells on Jurisdiction, sec. 172.
In many of the cases cited as sustaining the proposition that judgments rendered by a disqualified tribunal are void, it will be found, upon examination, that the judgments so rendered were attacked on appeal, and the language must be construe as applicable to the case before the court: Peninsular Ry. Co. v. Howard, 20 Mich. 18; Gregory v. Cleveland etc. R. R. Co., 4 Ohio St. 675. In many states statutes have been passed which prohibit judges disqualified by interest or relationship from acting in certain cases. Under these statutes it has usually been held that judgments rendered in contravention of statute are not simply voidable, but void: Black on Judge ments, sec. 174, and cases cited; Templeton v. Giddings, Tex. Dec. 6, 1889; Frevert v. Swift, 19 Nev. 363.
We do not hold that a case might not arise where a judg. ment rendered by a sole judge might not be absolutely void; buch, for instance, as one granting himself a divorce from his wife.
While it has been held that if incompetent magistrates or judges composing a court sat at the hearing, a judgment rendered by the court should be quashed or set aside: Peninsular Ry. Co. v. Howard, 20 Mich. 18; Queen v. Justices etc., 6 Q. B. 753. We are of the opinion that in an action brought to de clare such judgment a nullity, the fact that the major portion of the members of the court were disinterested is not without weight, and also the fact that a large number of parties litigant, other than such disqualified judge, were interested in and would be affected by such judgment.
It will be presumed in a collateral attack such as this, and especially in the absence of an averment to the contrary, that the county auditor gave the notice required by section 5092 of the Revised Statutes of 1881 of the time and place of meeting of the viewers: White v. Fleming, 114 Ind. 560; and it appears from an exhibit of the complaint that the notice required by section 5096 of the Revised Statutes of 1881 was given. This gave the appellees and all other landowners interested an opportunity to appeal to the circuit court in which the proceedings taken before the board of commission. ers might have been reviewed before a duly constituted and impartial tribunal: White v. Fleming, 114 Ind. 560; Markley v. Rudy, 115 Ind. 533; Fleming v. Hight, 101 Ind. 466; Wil kinson v. Lemasters, 122 Ind. 82; Board etc. v. Fullen, 118 Ind. 158.
If no provision had been made in the statute for notice to
the landowners affected at some stage of the proceedings, or opportunity given by appeal of having their causes tried by a duly constituted and impartial tribunal, the remedy by injunction would doubtless be open to the appellees: McEneney v. Town of Sullivan, 125 Ind. 407; Bass y. City of Fort Wayne, 121 Ind. 389; Updegraff v. Palmer, 107 Ind. 181; Forsythe v. Kreuter, 100 Ind. 27. In Osborn v. Sutton, 108 Ind. 443, it was held that an objection to the competency of an assessment committee must be made at the time the committee is appointed, or within a reasonable time thereafter.
In Bradley v. City of Frankfort, 99 Ind. 417, a commissioner to assess damages to property affected by the opening of a street was related to one who was financially interested in having it opened. It was held that one served with notice of the meeting of the commissioners before the assessment against his property, and of the incompetency of the commis. sioner, must then and there nake the objection, or it will be deemed waived.
The general rule to be deduced from these and similar cases is that where the board of county commissioners has jurisdiction of the subject matter, and has acquired 96 jurisdiction of the person by giving the required notice, and an opportunity by appeal is given of having a trial by an impartial tribunal, the proceedings are not subject to a collateral attack by injunction or otherwise.
This being a joint action by several landowners, the complaint is not aided by section 5102. In Stoddard v. Johnson, 75 Ind. 20, it was held that was only applicable to suits brought by single individuals, or by individuals having a single interest, where a judgment could be rendered "without affecting the rights or liabilities of other parties in interest."
We are satisfied that the court erred in overruling the demurrer to the complaint.
A demurrer was sustained to an answer which set forth the supsequent proceedings taken by the board in relation to this improvement. What we have said in discussing the ruling of the court on the demurrer to the complaint renders it unnecessary to set out the answer. The same principles of law require us to hold that the court erred in sustaining the demurrer to the answer.
HIGHWAYS.-ROAD COMMISSIONERS, IN ADJUDICATING UPON TA3 Neces SITY OF A Road, and in locating and making assessments for the same, et fudicially: Longfellow v. Quimby, 29 Mo. 196; 48 Am. Dea 625.
JUDGMENTS BY A DISQUALIFIED JUDGE ARE VOID: Extended note to More 5. Julian, 84 Am. Dec. 126-130; note to Sigourney v. Sibley, 32 Am. Doc 251; Horton v. Howard, 79 Mich. 642; 19 Am. St. Rep. 198, and note; Chin cago elc. Ry. Co. v. Summers, 113 Ind. 10; 3 Am. St. Rep. 616, and note; Newcomo v. Light, 58 Tex. 141; 44 Am. Rep. 604.
A DISQUALIFIED JODGE MAY PERFORM MERELY MINISTERIAL Aorks Sco atended note to Moses v. Julian, 84 Am. Dec 131.
SPAULDING V. SPAULDING.
(183 INDIANA, 122.] DIVOROR—ALIMONY-LEWD LIFE AS BAR TO.—A wito who loads a lowd
life, yielding her person to the embraces of different men, has no claim apon her husband for support and maintenance or alimony when divorce is granted to the husband on account of her misconduct A court abuses its discretion in granting the wife alimony in such a case. E. R. Wilson and J. J. Todd, for the appellant. A. L. Sharpe and F. L. Burgan, for the appellee.
129 ELLIOTT, J. The appellant petitioned for a divorce from the appellee, charging her with adultery, and the court found that the charge was true. A decree of divorce was granted the appellant, and an allowance of nine hundred dol. lars, as alimony, was made in favor of the appellee. The question as to the correctness of the part of the decree awarding alimony is well made, and properly saved, and it is the important question in the case.
The evidence shows that the appellee was guilty of many adulterous acts, with many men. Her conduct was that of
an who had surrendered her person to promiscuous intercourse with men, and who yielded to her passion without restraint, and in utter disregard of her duty to her husband. This is not the case of a single act of adultery, nor the case of continued acts with one man, but it is the case of a woman indulging in repeated and flagrant violations of her wifely vows and duties; nor was there any misconduct on the part of the husband 123 which excused the wife's life of shame; on the contrary, he seems to have borne with her with unusual patience, and to have treated her with kindness. The evidence also shows desertion, and that the appellee left the appellant to live with a paramour. The appellant has prop
erty of the probable value of Afteen thousand dollars, but he is in debt to a considerable sum, and his property is encumbered.
In our judgment, the trial court abused its discretion in allowing the appellee alimony. We are satisfied that a wife who lives a life of shame, yielding her person to the embraces of different men, has no claim upon the husband she has disgraced to support or maintenance. Her course of life forfeits all claim to the rights of a wife. We do not regard the decision in the case of Cox v. Cox, 25 Ind. 303, as opposed to the conclusion we have stated. A woman who lives a lewd life occupies a very different position from one who retains her chastity, but treats her husband with cruelty. We agree to the doctrine of Hedrick v. Hedrick, 28 Ind. 291, that the allowance of alimony “is not yet controlled by definite rules, and the determination of each case must, therefore, depend upon its own circumstances and an enlightened sense of justice and public policy." We cannot agree, however, that the doctrine lends support to the appellee's cause. It would be against public policy, and contrary to justice, to compel a husband to contribute to the support of a wife who had deBerted him for another, and who had brought shame upon him by lascivious conduct so gross as to bring her down among courtesans. The doctrine of the case of Stock v. Stock, 11 Phil. 324, applies here with controlling force. In speak. ing of a defendant, who occupied much the same position as that occupied by the defendant in this case, the court said: "By such a course she throws off alike her allegiance to her husband and to the law, and forfeits the right to demand support from the former, or assistance 124 from the latter to com pel him to render it. This is a conclusion supported alike by law, good morals, and public policy.” Our statute sanctions this general doctrine, for it denies to an adulterous wife any share of her deceased husband's estate. Our own court has recognized the doctrine, as the decision in Conner v. Conner, 29 Ind. 48, attests. In that case it was said: "The question, then, is almost purely whether a wife's thrice repeated and promiscuous adultery-the gravest of all possible crimes against the institution of marriage, and against the husband's honor and happiness, and against societyshall receive from our courts the same tender pecuniary consideration which the laws of the state bestow upon honest and virtuous widowhood. To state the question ought to be