Barney v. Tourtellotte
| Decision Date | 05 November 1884 |
| Citation | 138 Mass. 106 |
| Parties | Freeborn D. J. Barney v. Leutella H. Tourtellotte |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued October 1, 1884.
Worcester.
New trial ordered.
T. G Kent, for the defendant.
F. A Gaskill, for the plaintiff.
OPINION
This is an action to recover for the board of the defendant's wife and child. The plaintiff contended that the wife was living apart from her husband for justifiable cause; and, to prove this fact, put in evidence a decree of the Probate Court of Worcester county, rendered on July 1, 1882, upon the petition of the wife, under the Pub. Sts. c. 147, § 33, which decree has not been revoked. This decree was, that, "it appearing that the said Ida H. Tourtellotte is living separate and apart from the said Leutella H. Tourtellotte for justifiable cause, it is hereby ordered, adjudged, and decreed that the said respondent impose no restraint upon the person of the petitioner, and that the custody of the said Ethel L. Tourtellotte be decreed to the petitioner till the further order of the court." No other evidence was put in by the plaintiff; and the court ruled that said "decree was admissible and conclusive in this action as showing that said defendant's wife was living apart from him for justifiable cause during all the time for which the plaintiff claimed in this action to recover for her support, it being admitted by the defendant that said decree embraced and covered all that time." We understand the last clause of the ruling to mean that the same cause which was the basis of the decree of the Probate Court continued during all the time covered by the plaintiff's claim.
The principal and decisive question presented by the bill of exceptions is, whether the decree of the Probate Court was, as against the defendant in this case, evidence that, at the time it was rendered, the wife was living apart from her husband for justifiable cause.
It is the general rule that a judgment in one suit is not evidence in another suit, unless the same parties or their privies are, in both suits, litigating in regard to the same subject of controversy. The plaintiff in this suit was not a party, or privy to any party, in the proceedings before the Probate Court. If that court had adjudicated that the wife was not living apart from the husband for justifiable cause, and dismissed her petition, that decree would clearly not be evidence in favor of the husband against this plaintiff. Burlen v. Shannon, 3 Gray 387. Hubert v. Fera, 99 Mass. 198. And the plaintiff cannot avail himself of the decree as evidence against the defendant. As between the plaintiff and the defendant, the question whether the wife had justifiable cause for separating from her husband is res integra, which has never before been litigated or decided. Gill v. Read, 5 R.I. 343.
But the plaintiff contends that this rule does not apply, because the decree of the Probate Court is a judgment determining the status of the parties, and therefore, like a judgment in rem, is evidence against all the world. Undoubtedly, a decree of a competent court granting a divorce, or annulling or affirming a marriage, is a judgment...
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Menees v. Cowgill
...24, 34 S.W. 489; Drake v. Drake, 328 Mo. 966, 43 S.W. (2d) 556; Weber v. Griffiths, supra; Black's Law Dictionary (3rd Ed.); Barney v. Tourtellotte, 138 Mass. 106; McIntyre v. Hardesty, supra; Sec. 1673, R.S. 1909; Bland v. Buoy, 335 Mo. 967, 74 S.W. (2d) 612; State ex rel. Bolshaw v. Montg......
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Menees v. Cowgill
...Mo. 24, 34 S.W. 489; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556; Weber v. Griffiths, supra; Black's Law Dictionary (3rd Ed.); Barney v. Tourtellotte, 138 Mass. 106; McIntyre Hardesty, supra; Sec. 1673, R.S. 1909; Bland v. Buoy, 335 Mo. 967, 74 S.W.2d 612; State ex rel. Bolshaw v. Montgomery......
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...under either § 32 or § 36 is in effect a judgment in rem which is binding upon all the world. The plaintiff here relies upon Barney v. Tourtellotte, 138 Mass. 106, to support her contention that either a decree under § 32 without an order for support of a decree under § 36 was of no effect ......
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