Gray v. Gray

• Decision Date: 16 February 1904
• Citation: 104 Mo. App. 520,79 S.W. 505
• Parties: GRAY v. GRAY.
• Court: Missouri Court of Appeals

79 S.W. 505

104 Mo. App. 520

GRAY v. GRAY.

St. Louis Court of Appeals. Missouri.

February 16, 1904.

DIVORCE—FELON AS DEFENDANT—STATUTES.

1. Rev. St. 1899, § 2382, providing that a sentence of imprisonment for a term less than life suspends all civil rights of the person so sentenced during the term thereof, does not prevent a suit for divorce against one serving a sentence in the penitentiary under section 2921, providing that when a marriage has been solemnized between two persons, and either party during the marriage shall have been convicted of felony, the injured party may obtain a divorce.

Appeal from Circuit Court, Scotland County; E. H. McKee, Judge.

Action by Viola Gray against William Gray. From a judgment for defendant, plaintiff appeals. Reversed.

Smoot, Boyd & Smoot, for appellant.

GOODE, J.

The parties to this action were married in June, 1901. In February, 1902, the defendant was found guilty of the crime of forgery and sentenced to the state penitentiary for a term of years. In January, 1903, the plaintiff instituted this action for divorce on the ground of Gray's conviction of felony. A writ was issued directed to the sheriff of Cole county, where the defendant was imprisoned, and was served on the defendant, and a return made, showing full compliance with the statutory requirements of service. The evidence shows the parties lived together only three weeks, when the defendant was apprehended for the crime of which he was convicted; further, that the defendant was under conviction for the like crime in the state of Illinois at the date he was married, of which fact his wife was ignorant. He was absent from the Illinois prison on his parole when the marriage took place. The record of the conviction in the circuit court-of Scotland county, Mo., was put in evidence. On these facts the court below dismissed the plaintiff's petition for the reason that the defendant was civilly dead pending his imprisonment, and incapable of being sued. Rev. St. 1899, § 2382. That ruling of the circuit court was erroneous. The civil death which attaches to a person as an incident of his conviction of an infamous crime destroys his right to sue or to make executory contracts, but not the right of others to prosecute suits against him. Mr. Chitty, in speaking on the subject, says: "This situation of civiliter mortuus is not allowed to protect him [an attainted or convicted person] from the claims of private individuals or the necessities of public...