Appellant is the husband of appellee Yeager. In March, 1906, appellant commenced suit for a divorce from said appellee on the ground of abandonment for more than two years. Defendant filed a cross-complaint, alleging the same cause of action, and also asked for a divorce. An
On September 27, 1906, appellant began this suit by filing a complaint with substantially the same allegations as were contained in his former suit. Said appellee’s cross-complaint varied from the one previously filed, in that it asked for $500 alimony. Answers were filed, a change of judge was taken, and the cause was set for trial on January 15, 1907. On that day the prosecuting attorney appeared and filed pleas of former adjudication, setting up the prior judgment. Motions to strike out the appearance of the prosecutor and demurrers to the special answers were overruled and exceptions reserved. Trial was had, special findings made, and conclusions of law ’stated thereon “that neither plaintiff nor defendant is entitled to a decree of divorce in this suit. ’ ’ Appellant excepted to the conclusions of law, and filed a motion for a venire de novo, which was overruled.
1. There was no error in overruling the motion for a venire de novo.
2. It should have been made before judgment was rendered. McClintock v. Theiss (1881), 74 Ind. 200; Potter v. McCormack (1891), 127 Ind. 439; Shaw v. Merchants Nat. Bank (1877), 60 Ind. 83, 94; Bennett v. Simon (1899), 152 Ind. 490; Sloan v. Lick Creek, etc., Gravel Road Co. (1893), 6 Ind. App. 584, 594; Elliott, App. Proc., §762; 1 Works’ Practice (3d ed.), §974. But had the motion been seasonably made, it should have been overruled; the omission to find certain facts in ' terms being equivalent to a finding against the party having the burden of proof. Glantz v. City of South Bend (1886), 106 Ind. 305; Maxwell v. Wright (1903), 160 Ind. 515.
4. It is said in argument that “the contention in this appeal is between the appellant and the prosecuting attorney. ’ ’ In this counsel are much mistaken. “■ The State is a third party to all suits for divorce. State v. Brinneman (1889), 120 Ind. 357, 358; Scott v. Scott (1861), 17 Ind. 309; McMakin v. McMakin (1896), 68 Mo. App. 57, 62; 2 Bishop, Mar., Div. and Sep., §§489, 498. The marriage relation is one upon which civilized society is dependent both for tolerable present conditions, and for permanence; and as was forcibly said in Scott v. Scott, supra: “The obligations imposed thereby, it appears to us, are somewhat different from those resting upon parties in a mere contract for the purchase of a mule or a hog.” The interests of the State in a divorce case are in the keeping of the court. Whenever, in the course of the trial, it appears that the action is collusive or barred, it is the duty of the judge, regardless of the pleadings of the married parties, fully to incluiré of his own motion, as the representative of the State, into such facts or circumstances, and to act in accordance with the facts thus developed. Ribet v. Ribet (1864), 39 Ala. 348; Peck v. Peck (1887), 44 Hun 290, 292; Dutcher v. Dutcher (1876), 39 Wis. 651, 668; Owen v. Owen (1892), 48 Mo. App. 208; Moore v. Moore (1890), 41 Mo. App. 176; Foster v. Redfield (1877), 50 Vt. 285, 290; Dismukes v. Dismukes (1873), 1 Tenn. Ch. 266; 2 Bishop, Mar., Div. and Sep., §663; 9 Am. and Eng. Ency. Law (2d ed.), 729.
Judgment affirmed.