
    No. 4
    BOWERS v. BOWERS
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2667.
    Decided July 6, 1925
    413. DIVORCE — Imprisonment in the Ohio State Reformatory is not a ground for divorce under 11979 GC.
    Attorneys — Walter K. Sibbald, Cincinnati, for Catherine Bowers.
   BUCHWALTER, P. J.

Catherine Bowers filed a petition in the Hamilton Common Pleas praying for divorce from' Francis Bowers; her petition setting forth that her husband was tried and convicted of highway robbery and was now serving sentence in the Mansfield Reformatory.

Upon' hearing, the court ruled that no grounds for divorce were set forth in petition. To reverse this ruling, error was prosecuted to the Court of Appeals, which held:

1. 11979 GC. sets forth sufficient grounds for divorce and includes the following: “The imprisonment of either party in the penitentiary, under sentence thereto. The petition for divorce under this clause must be filed during the imprisonment of the adverse party.”
2. The question therefore presented is: does the imprisonment of a felon in the Ohio State Reformatory, under sentence of a court, and as punishment for a crime, constitute a ground for divorce in an action brought by a wife, or is the Ohio State Reformatory a penitentiary within the meaning of 11979 GC?
3. Authorities are cited as to the proposition that for adults it is a penitentiary, and as to juveniles, it is a house of correction.
4. See. 11979 GC. is unequivocal, and if the Ohio State Reformatory is a penitentiary, the wife was entitled to a decree of divorce.
5. A statute passed in 81 OL. 206, termed the institution as an intermediary penitentiary.
6. If the provisions of this statute are still in force, Catherine Bowers would be entitled to a divorce; but the legislature in a bill passed Apr. 24, 1891, 88 OL. 382, saw fit to change the institution not only in character but in name, to the Ohio State Reformatory.
7. Said statute further provided that adults could be committed under certain conditions, and the rules governing adults are the same as those governing juveniles.
8. Therefore, as it is not within the province of the court to act in a legislative capacity and as there is not statute stating that imprisonment in a Reformatory is a ground for divorce, the judgment of the lower court will be affirmed.

Judgment affirmed.  