Field v. Field

• Decision Date: 10 October 1928
• Citation: 163 N.E. 177,264 Mass. 549
• Parties: FIELD v. FIELD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 549

163 N.E. 177

FIELD

v.FIELD.

Supreme Judicial Court of Massachusetts, Franklin.

Oct. 10, 1928.

Appeal from Probate Court, Franklin County; Francis Nims Thompson, Judge.

Libel for divorce by Edgar Roylance Field against Flora Myrle Field. Decree of dismissal without prejudice and libellee appeals. Affirmed.

W. A. Davenport and W. L. Davenport, both of Greenfield, for appellant.

M. J. Levy, of Greenfield, for appellee.

RUGG, C. J.

This libel for divorce comes before us by appeal from a final decree entered in the probate court. There is no report of evidence and no finding of material facts by the judge. The case stands substantially on the same footing as an appeal from a final decree in equity and is subject to the same principles as to disposition. Drew v. Drew, 250 Mass. 41, 43, 144 N. E. 763. The part of the final decree material to the issues here argued is that ‘after full hearing * * * it is decreed that said libel be dismissed * * * without prejudice.’

It is contended in behalf of the libelee that the dismissal of the libel without prejudice after a full hearing was error as matter of law. This contention cannot be supported. It is the general rule that a suit in equity fully heard on its merits ought to be decided by a decree which settles for all time the issues involved. The trial of causes inevitably involve expense to the public and to the parties. The welfare of the commonwealth and of litigants requires that, after a fair trial in accordance with governing principles of law, the controversy be laid at rest and litigation ended. Boston Bar Association v. Casey, 227 Mass. 46, 48, 116 N. E. 541;Zeitlin v. Zeitlin, 202 Mass. 205, 88 N. E. 762,23 L. R. A. (N. S.) 569, 132 Am. St. Rep. 490;Renwick v. Macomber, 233 Mass. 530, 124 N. E. 670. This principle applies in general to all proceedings in the courts. This principle applies to libels for divorce. Waterhouse v. Waterhouse, 225 Mass. 228, 114 N. E. 283. See De Ferrari v. De Ferrari, 220 Mass. 38, 107 N. E. 404;Malcolm v. Malcolm, 257 Mass. 225, 153 N. E. 461.

Courts of equity and divorce have power to enter a decree dismissing the cause without prejudice. The entry of a decree in equity dismissing the bill without prejudice occurs ‘where the dismissal is occasioned by slip or mistake in the pleadings or proof,’ as, for example, ‘in consequence of facts not having been properly put in issue.’ 2 Daniell's Chancery Practice (6th Am. Ed.) *994. There are in the decisions numerous references to the dismissal of a bill in equity without prejudice. Bigelow v. Winsor, 1 Gray, 299, 301;Foote v. Gibbs, 1 Gray, 412, 413;Borrowscale v. Tuttle, 5 Allen, 377, 378;Durant v. Essex Co., 8 Allen, 103, 108, 85 Am. Dec. 685;Lakin v. Lawrence, 195 Mass. 27, 28, 29, 80 N. E. 578;Buchholz-Hill Transportation Co. v. Baxter, 206 N. Y. 173, 177,99 N. E. 180, Ann. Cas. 1914A, 1105. There are similar references in decisions concerning divorce. Thurston v. Thurston, 99 Mass. 39;Bradley v. Bradley, 160 Mass. 258, 35 N. E. 482. There are express adjudications to the effect that such entry may be made in divorce proceedings. Ashmead v. Ashmead, 23 Kan. 262, where the opinion was given by Judge Brewer, later a justice of the Supreme Court of the United States; Burton v. Burton, 58 Vt. 414, 5 A. 281.

Plainly it was within the jurisdiction of the probate court to...