Pratt v. Pratt
| Decision Date | 28 December 1892 |
| Citation | 157 Mass. 503,32 N.E. 747 |
| Parties | PRATT v. PRATT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F.L. Washburn, for libelant.
C.A Drew, for respondent.
This is a libel for divorce. The facts, in brief, are these: On June 10, 1891, the libelant obtained a decree nisi for gross and confirmed habits of intoxication, and cruel and abusive treatment, on the part of the libelee. In November 1891, the libelant, who was then living in New Hampshire, wrote to her attorney in the divorce proceedings to have the papers of her divorce sent to her at once, and asking if it was necessary for her to appear personally to have the divorce granted; and in the same month received a reply from her attorney, stating that the six months would not expire till December 10, 1891; that he would then attend to having the decree made absolute; and that it would not be necessary for her to appear personally. The attorney was prevented from attending to the matter by reason of illness. The libelant, supposing that her attorney had attended to the matter, and that her divorce had been made absolute, on December 26, 1891, in New Hampshire, without doing anything more as to her divorce, married one Smith, in good faith, believing that she had a legal right so to do, and lived with him till she learned that the divorce had not been made absolute, and that said marriage was not valid. On January 11, 1892, the father of Smith appeared by his attorney, and filed a motion for leave to appear and oppose the granting of an absolute decree in this case, and alleging the marriage with Smith. On the same day the attorney stated this marriage as a fact to the court. On January 25, 1892, the libelee appeared by attorney, and filed a similar motion. The application to have the decree made absolute was filed on January 19, 1892. A time was appointed for a hearing on this application, and at this hearing the judge allowed the attorney for the libelee and for the father of Smith to appear and cross-examine the witnesses in support of the application, and to be heard on the law and the evidence. After the hearing, the judge ruled that the libelee or Smith did not have the right to appear and file objections, and disallowed their motions. He nevertheless found the facts as to the second marriage to be as above set forth. The libelant contends that the ruling of the judge was right in disallowing the motions, and that, as there was then nothing of record before the court to show why a decree should not be entered making the divorce absolute, the libelant was entitled to a decree. Rule 5 of the rules of the superior court for the regulation of practice in divorce is as follows: "At any time before the expiration of six months from the granting of a decree of divorce nisi the libelee, or any other person, may file in the office of the clerk for the county in which the libel is pending a statement of objections to an absolute decree; such statement to set forth the facts on which it is founded, verified by affidavit." Section 6, St.1887, c. 332, giving the superior court original jurisdiction of causes of divorce, provides that "the superior court shall establish all necessary rules to regulate the practice under this act." It is true, as contended by the libelant, that a rule of court has the force of law, and is binding upon a judge, and he has no authority to dispense with it. Baker v. Blood, 128 Mass. 543, 545. Nevertheless we have no doubt of the power of a single justice in a divorce case, where a cause arises after the six months, which may influence his decision, in refusing to make a decree absolute, to admit evidence thereof, even if he has not the power when the cause arises within the six months,--a question which it is not necessary in this case to decide. We are of opinion, therefore, that the evidence of the second marriage was properly before the court. See 2 Bish.Mar. & Div. § 253, and cases cited.
On the principal question in the case, the judge, in his report to the court, states: "If I had discretionary power, I should grant the application of the libelant, and make the decree absolute; but I ruled that the application could not be granted because of said marriage of December 26, 1891, and ordered the libel dismissed." This ruling was made as matter of law, and the case is reported for our determination. It is undoubtedly true that the divorce nisi did not dissolve the marriage between the libelant and the libelee. Graves v. Graves, 108 Mass. 314, 320; Fox v. Davis, 113 Mass. 255, 258; Sparhawk v Sparhawk, 114 Mass. 355; Garnett v. Garnett, Id. 379; Moors v. Moore, 121 Mass. 232; Cook v. Cook, 144 Mass. 163, 10 N.E. 749. The new marriage was therefore void. Pub.St. c. 145, §§ 4, 7. Cook v. Cook, ubi supra. Where a marriage is void, the fact that a person entered into it in good faith, and with the belief that he had the right to marry, is immaterial on the question of its validity. White v. White, 105 Mass. 325; Glass v. Glass, 114 Mass. 563; Thompson v. Thompson, Id. 566; Cook v. Cook, ubi supra. If we assume in the case at bar that the libelant, by reason of her second marriage, and her subsequent intercourse with Smith, which must be presumed from the fact of cohabitation, was technically guilty of the crime of adultery, (see Com. v. Thompson, 6 Allen, 591, and 11 Allen, 23,) we are nevertheless of opinion that it was within the power of the justice who heard this...
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