102 Ky. 440 | Ky. Ct. App. | 1897
delivered th* «pinion of the court.
Appellant and appellee were married in 1881. and lived together until 1884, when appellee was convicted of murder and sentenced to the penitentiary for life, where he still remains. In January, 1896, appellant instituted this actions for divorce, relying on two grounds therefor:
1st. Living apart without any cohabitation for five years; next before the application.
2d. Condemnation for felony in this State.
These grounds are. set out in subsection 2 and 8 of section 2117 of the Kentucky Statutes. Appellant also averred'that
In section 2120 of the statutes it is provided that the-“action for divorce must be brought within five years next after the doing of the act complained of,” but in section 423: of the Civil Code it is provided that a plaintiff, to obtain a divorce, must allege and prove, in addition to a legal cause of divorce:
3d. That the cause of divorce occurred or existed withdit five years next before the commencement of the action.
The chancellor denied the appellant relief solely on the ground that the living apart “was not voluntary” and that the condemnation for felony meant-conviction for felony, and as that had not occurred within five years next before this action was instituted she was not entitled to a divorce on that ground. We think. the cháncellor was in error as to> both grounds. It is true that in Pile v. Pile, 94 Ky., 808, the husband was denied a divorce on the grounds of lunacy and abandonment for five years, but the court said:. “Here the wife has a mind diseased without her fault, and ha* never abandoned her husband, but is now confined in an asylum for the insane by his consent and direction.”
Here the husband is eonfined in the penitentiary for life after a conviction for crime, and the separation certainly can not be said to be without his fault, though it is wholly without the fault of plaintiff. Again, we think the condemnation for felony existed within the five years before suit was brought, although the judgment of conviction was entered more than five years before. Such condemnation: must exist at least as long as the judgment is in force. The
We are inclined to think, however, that it is not applicable. The doing of the act complained of, mentioned in the-statute, would seem to have reference to some of the many ■ acts set'out in the statute to be committed by either the husband or wife entitling the other to a divorce. Here thé condemnation was not the act of the husband, but an act by the State, It follows further, from what, we have said, that the order of allowance to Edwards as guardian ad litem to be paid by the wife is erroneous, as under the statute this is to be paid by the husband. (Section. 900, Kentucky Statutes.)
Judgment is reversed for proceedings consistent herewith.