Bradley v. Bradley
| Decision Date | 05 December 1893 |
| Citation | 35 N.E. 482,160 Mass. 258 |
| Parties | BRADLEY v. BRADLEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John
F. Wakefield, for plaintiff.
Horace I. Bartlett, for defendant.
The entry, "Libel dismissed," without the addition of the words, "without prejudice," purports to be a final judgment upon the merits. It is a bar to any further proceedings upon the cause of action set out in the libel. In collateral proceedings it is not conclusive by way of estoppel, or as evidence, except upon matters actually tried and determined but as a final disposition of that for which the suit was brought it is, like a judgment by default, conclusive as well in regard to the matters which might have been pleaded as those which were formally put in issue. Thurston v Thurston, 99 Mass. 39; Foote v. Gibbs, 1 Gray, 412; Borrowscale v. Tuttle, 5 Allen, 378; Durant v. Essex Co., 8 Allen, 108; Foye v. Patch, 132 Mass. 111. The judge, who tried the case without a jury ruled that the former divorce suit was a bar to the libel for the same cause of divorce, and, "as to the cause of divorce set forth in the amendment, that desertion was not proven, and ordered the libel to be dismissed." The ruling which we have just considered was upon a matter of law, but the question whether the cause of divorce set forth in the amendment was proved was a question of fact, and we understand the bill of exceptions to mean that he found as a fact that the desertion was not proved. The question before us is whether there was any error of law in that finding. The amendment alleges a desertion, occurring on or about April 15, 1884, subsequently to the hearing upon the first libel. The conduct of the libelant previously to that hearing being eliminated from consideration as a substantive cause for divorce, we find the parties actually living apart; the libelee having said, in reply to a question from the judge at the hearing, that she would live with her husband if he would treat her as a wife. The circumstances disclosed in the evidence at that hearing were such as to induce the judge to continue the case in view of her statement, in order to give the parties an opportunity to resume their cohabitation if they desired. The conduct of the libelant from that time forward is important to be considered on the question whether his wife's subsequent absence from him was with his consent or against his will. He admitted in his...
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