Studley v. Studley

• Decision Date: 29 October 1935
• Docket Number: 29352.
• Citation: 263 N.W. 139,129 Neb. 784
• Parties: STUDLEY v. STUDLEY.
• Court: Nebraska Supreme Court

263 N.W. 139

129 Neb. 784

STUDLEY v. STUDLEY.

No. 29352.

Supreme Court of Nebraska.

October 29, 1935

Syllabus by the Court.

1. A sentence to the reformatory for women at York, Nebraska, as created by chapter 238, Laws 1919, is a sentence to imprisonment in a " prison, jail or house of correction," within the meaning of section 42-301, Comp St. 1929.

2. A sentence of " not less than one year nor more than ten years," made under the provisions of the indeterminate sentence law of this state, is a definite sentence for the maximum term thereof.

3. " A court of equity will not grant a divorce to one whose conduct has been such as to furnish sufficient grounds for divorce, even if the conduct of the other party has been grossly more culpable. In such case the court will deny relief to either." Peyton v Peyton, 97 Neb. 663, 151 N.W. 150.

Appeal from District Court, Wayne County; Chase, Judge.

Suit by Darlene M. Studley against Russell A. Studley. From a judgment dismissing the action after a general demurrer to the answer was overruled, plaintiff appeals.

Affirmed.

H. E Siman, of Wayne, for appellant.

Troyer & Pardee, of Omaha, for appellee.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

CARTER, Justice.

Appellant filed her petition for a divorce in the district court for Wayne county on September 26, 1933, wherein she alleged as ground therefor that the appellee had been convicted of a felony under the laws of Nebraska on July 8, 1930, and had been sentenced to a term in the penitentiary exceeding three years. There is no dispute that these allegations constitute a ground for divorce under the provisions of section 42-301, Comp. St. 1929. Appellee alleged as a defense that on March 4, 1931, the appellant was convicted of a felony under the laws of Nebraska and was sentenced to serve a term in the reformatory for women at York, Nebraska, of not less than one year nor more than ten years, and that said felony was committed in connection with the same transaction for which the appellee was sentenced. The answer also shows that appellant served eighteen months of the sentence in the reformatory at York. To the answer the appellant filed a general demurrer which was overruled. The appellant elected to stand on her demurrer and the trial court entered a judgment dismissing the action. From the judgment thus entered the appellant appeals.

The question for determination is whether the allegations of the answer are sufficient to constitute a defense. Section 42-301, Comp. St. 1929, provides in part as fol lows: " A divorce from the bonds of matrimony may be decreed by the district court of the county where the parties, or one of them, reside, on application by the petition of the aggrieved party in either of the following cases: * * * Third. When one of the parties has been sentenced to imprisonment in any prison, jail or house of correction for three years or more." The record discloses that appellant was sentenced to serve not less than one year nor more than ten years in the reformatory for women at York. At the time appellant was sentenced to the reformatory for women, section 83-1403, Comp. St. 1929, provided: " A female of fifteen years of age and upwards convicted by any court or magistrate * * * or convicted of any felony * * * may within the discretion of the courts or magistrates and compatible and in accord with the indeterminate sentence law of this state, be sentenced and committed to the Nebraska Reformatory for Women, to be there confined under the provisions of law relating thereto, but subject to removal to the penitentiary, in cases of felony, as hereinafter provided. * * * The board of control may cause to be removed to the penitentiary any prisoner in said reformatory, convicted of felony and appearing to be incorrigible."

It will be noted that, under our statute as it then existed, a woman who had been convicted of a felony could be sentenced to the state penitentiary or to the reformatory for women at York. If she was sentenced to the reformatory, power was granted to the board of control to remove her to the penitentiary if she became incorrigible. It was also necessary that a sentence to the reformatory for women be in accordance with the indeterminate sentence law of this state, which applies only to certain classes of persons convicted of felonies and sentenced to the penitentiary. Comp. St. 1929, §...