Costa v. Costa
| Decision Date | 30 October 1936 |
| Citation | 4 N.E.2d 324,295 Mass. 556 |
| Parties | COSTA v. COSTA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Libel for divorce by Lena Costa against Antonio Costa. From the Decrees, the libellee appeals.
Decrees affirmed.
Appeal from Probate Court, Bristol County; Hitch, Judge.
A. Andrade, of Taunton, for appellant.
F. E. Knowles, V. J. Deponte, Jr., and R. E. Knowles, all of Taunton, for appellee.
These are appeals by the libellee from numerous decrees entered in the Probate Court culminating in the granting of a divorce and in the refusal to set aside decrees leading to that result. The only question argued by the libellee is ‘ whether the filing of an answer setting up an affirmative defence is a prerequisite to the introduction of evidence of an affirmative defence, in divorce.'
The material facts on this point appear to be these: No answer was filed by the libellee within the time allowed by the rule. The time for filing an answer had expired. On the morning of the trial the libellee tendered an answer setting up the affirmative defence of adultery on the part of the libellant. The judge refused to permit the answer to be filed late and refused to admit evidence to support that defence. A decree nisi was entered. Thereafter the libellee filed a motion to set aside the decree and praying for a new trial. At the hearing on that motion the facts alleged were discussed and considered. Decree was entered denying the motion. No appeal was taken from that decree. On objections of the libellee to the decree nisi becoming absolute the trial judge found that there was no improper conduct shown on the part of the libellant with the co-respondent.
If it be assumed, without deciding, that the point argued by the libellee is open on this record, no error is shown. While there is omitted in rules 37, 38, 39 of the Probate Courts (1934) a provision in an earlier rule that ‘ No affirmative defense shall be heard unless set up by the answer,’ it is manifest that an answer of the nature sought to be filed by the libellee in the case at bar must set out the facts relied upon as an affirmative defence and that the filing of the answer after the time limited for such filing was within the discretion of the trial judge. The libellee fails to show any reversible error.
Decrees affirmed.
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Reddington v. Reddington
...See Newman v. Newman, 211 Mass. 508, 98 N.E. 507, Ann.Cas.1913B, 672;Sanderson v. Sanderson, 271 Mass. 386, 171 N.E. 476;Costa v. Costa, 295 Mass. 556, 4 N.E.2d 324; G.L. (Ter.Ed.) c. 208, §§ 9, 10, 11, as amended by St. 1943, c. 196. The answer did not charge adultery. The judge found in s......
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Reddington v. Reddington
... ... by amendment. See Newman v. Newman, 211 Mass. 508; ... Sanderson v. Sanderson, 271 Mass. 386; Costa v ... Costa, 295 Mass. 556; G. L. (Ter. Ed.) c. 208, Sections ... 9, 10, 11, as amended by St. 1943, c. 196. The answer did not ... charge ... ...
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Hayden v. Hayden
...of the Probate Courts of the earlier provision that 'No affirmative defense shall be heard unless set up by the answer.' Costa v. Costa, 295 Mass. 556, 4 N.E.2d 324. But it does not preclude a court from dealing with the issue in circumstances such as are disclosed here. The libellant did n......