Daughdrill v. Daughdrill

• Decision Date: 17 January 1938
• Docket Number: 32831
• Citation: 178 So. 106,180 Miss. 589
• Court: Mississippi Supreme Court
• Parties: DAUGHDRILL v. DAUGHDRILL

178 So. 106

180 Miss. 589

DAUGHDRILL v. DAUGHDRILL

No. 32831

Supreme Court of Mississippi

January 17, 1938

Division A

DIVORCE.

The statute authorizing granting of divorce in case offending party had been sentenced to the penitentiary referred only to penitentiary of state of Mississippi, and husband's sentence to federal penitentiary in another state did not entitle wife to divorce (Code 1930, section 1414).

HON BEN STEVENS, Chancellor.

APPEAL from chancery court of Forrest county HON. BEN STEVENS Chancellor.

Suit for divorce by Mrs. Sadie Rainey Daughdrill against Leroy Daughdrill. From a decree of dismissal, complainant appeals. Affirmed.

Affirmed.

Lester Clark, of Hattiesburg, for appellant.

The Supreme Court of Mississippi has never passed upon the question of whether or not Section 1414 of the Mississippi Code of 1930, Cause No. 3, which states, "Being sentenced to the penitentiary and not pardoned before being sent there," applies only to a conviction in this state and sentenced to the Mississippi State Penitentiary, or whether or not the statute applies to a conviction and sentence to any penitentiary.

In Section 140 of Amis' Divorce and Separation in Mississippi, the position is taken that it does not mean a penitentiary or any penitentiary, but only the penitentiary of this state, and this authority cites 19 C. J., page 43, par. 78, and 9 R. C. L., page 320, sec. 96. 19 C. J., page 43, par. 78, states, "Conviction Out of State: Unless otherwise expressed in the statute conviction and imprisonment without the state is not a cause for divorce."

The Supreme Court of the State of Massachusetts in the case of Leonard v. Leonard, 6 L. R. A. 632, held that "A sentence to imprisonment in the state prison of a foreign state is not a ground of divorce within the statute providing that a divorce may be decreed when either party has been sentenced to confinement in the state penitentiary." It will be noted, however, that this Massachusetts statute specifically stated "The state prison." The construction of this statute is very definite and specific in that it states a state prison, while our Mississippi statute uses the term, "the penitentiary."

Had the Mississippi Legislature intended that being convicted and sentenced to the penitentiary and not pardoned before being sent there meant only the Mississippi State Penitentiary, then why did it not word the statute to read the Mississippi Penitentiary or the state penitentiary ?

It appears that several chancellors in Mississippi at present construe the Mississippi statute to mean any penitentiary, and grant divorces when it is proven that the defendant has been convicted and sentenced to another state penitentiary or a federal penitentiary, and not pardoned before being sent there. Certainly, if our statute stated that state penitentiary or the state prison, it would definitely be limited to offenses and convictions in this jurisdiction only.

We submit that the wording of the Mississippi statute could well be construed and should be construed to mean any penitentiary or a penitentiary. In the case at bar, the appellant suffered all the injuries that she would have suffered had her husband been sent to the Mississippi State Penitentiary. She suffered the loss of his support, the loss of his association, fellowship, protection, etc. Then, too, she suffered the humiliation of becoming the wife of a convict. For the above reason and perhaps other, the Mississippi Legislature enacted a law making, "Being convicted and sentenced to the penitentiary and not pardoned before being sent there," a ground for divorce.

OPINION

McGowen, J.

The appellant, Mrs. Sadie Rainey Daughdrill, filed a bill for divorce against her husband, Leroy Daughdrill, in Forrest county. The bill charged that appellee was "tried in the Federal Court at Mobile, Alabama, in...