Frechette v. Thibodeau

• Decision Date: 04 March 1936
• Citation: 200 N.E. 538,294 Mass. 51
• Parties: FRECHETTE v. THIBODEAU et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 51

200 N.E. 538

FRECHETTE

v.THIBODEAU et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 4, 1936.

Suit in equity by Rose Alma Frechette against Ralph Joseph Thibodeau and others. From a final decree dismissing the bill, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Middlessex County; Morton, Judge.

D. F. McCormack, of Boston, for appellant.

J. Levy and R. J. Thibodeau, both of Boston, for appellees.

FIELD, Justice.

Jean P. Norro brought a bill in equity in the Superior Court against Rose Alma Frechette and Alphonse L. Frechette, her husband, and two other defendants. No service was made on the other defendants and the bill was dismissed as to them. An interlocutory decree was entered reciting that the defendants Rose Alma Frechette and Alphonse L. Frechette had failed to enter their appearances and ordering that the bill be taken for confessed against them. Thereafter, on December 22, 1933, a final decree was entered adjudging that the real estate described in certain deeds was the property of the plaintiff Norro ‘as an absolute estate forever’ and ordering the defendants Rose Alma Frechette and Alphonse L. Frechette, husband and wife, severally and jointly to reconvey such real estate to said plaintiff. No proceeding for review by way of appeal or exceptions was instituted. On April 21, 1934, an action of summary process to recover possession of the premises referred to in this decree was entered in the District Court by Jean P. Norro against Rose Alma Frechette and Alphonse L. Frechette. The defendants defaulted and judgment for the plaintiffs for possession was entered May 4, 1934. Execution issued a few weeks later and is still outstanding. Jean P. Norro died May 7, 1934. His will was duly allowed. Ralph Joseph Thibodeau was appointed executor of said will, and by said will the real estate in question was devised to Henri Cormier. On July 9, 1934, Cormier made a demand for possession of the premises.

Rose Alma Frechette (herein referred to as the plaintiff) thereafter brought in the Superior Court this original bill in equity under the title ‘Plaintiff's Bill In The Nature Of A. Bill Of Review And For Other Specific Relief’-it is now being prosecuted by the administratrix of her estate-against Ralph Joseph Thibodeau, executor of the will of Jean P. Norro, Henri Cormier and Alphonse L. Frechette, praying that she ‘be absolved from any observance of the injunction and orders' under the final decree in the previous suit, ‘that said Final Decree may be altered and modified as to enable the plaintiff to enjoy and own the said premises free and clear from any cloud upon the title thereto created by virtue of said Final Decree or any devise under said will,’ that the defendant Cormier ‘be restrained from enforcing the execution for possession of the said premises or from disturbing the plaintiff's occupation of said premises until further order of the Court,’ and that the defendants Cormier and Thibodeau ‘be restrained from encumbering or alienating in any manner the premises herein referred to,’ and praying for general reflief.

The case was referred to a master who made a report which was confirmed by an interlocutory decree. The judge to whom the case was submitted on the master's report made findings and rulings. A final decree was entered dismissing the bill and the plaintiff appealed therefrom the this court.

The decree was right.

1. The primary question for decision is whether the decree entered in the previous suit can be ‘altered and modified’ in this suit in accordance with the prayer of the bill and the plaintiff be ‘absolved from any observance of the injunction and orders' thereunder.

‘It is an established principle that after the entry of a final decree in a suit in equity the case is finally disposed of subject to such rights of appeal as the law affords, and the court has no further power to deal with the case except upon a bill of review,’ though there are certain exceptions to this rule. Kingsley v. Fall River, 280 Mass. 395, 398, 182 N.E. 841;Prenguber v. Agostini, 289 Mass. 222, 193 N.E. 743.

The plaintiff properly does not contend that this bill can be maintained as a bill of review. No error of law is apparent on the face of the record in the previous suit. And it is not alleged in the present bill, nor found by the master, that there is ‘new evidence not susceptible of use at the trial and coming to light after the decree,’ or ‘new matter arising after the entry of the decree.’ Boston & Maine Railroad v. Greenfield, 253 Mass. 391, 397, 149 N.E. 322, 324;Sullivan v. Sullivan, 266 Mass. 228, 229, 165 N.E. 89. The only exception to the rule, already stated, as to the power of the court to deal with a final decree, which requires consideration is the exception of a final decree entered by default where the defaulted defendant was deprived of an opportunity to make a defence to the suit through fraud, mistake, accident, negligence or mistake of his attorney or want of notice to such defendant of the pendency of the suit. See Kingsley v. Fall River, 280 Mass. 395, 398, 182 N.E. 841, and cases cited. See, also, Crawford v. Nies, 224 Mass. 474, 490, 113 N.E. 408. We need not consider whether, where the facts bring a case within this exception, relief by way of modifying a final decree entered in the previous suit can be obtained in a proceeding such as this, nor discuss the nature of the present proceeding, since we are of opinion that, on the merits of the case, apart from matters of form, the plaintiff is not entitled to a decree in the present suit modifying the decree entered in the previous suit. See Crawford v. Nies, 224 Mass. 474, 490, 113 N.E. 408;Mackay v. Brock, 245 Mass. 131, 133, 134, 139 N.E. 517.

Review of a final decree on grounds included in this exception is discretionary and not matter of right. It must appear that justice requires such review. Thompson v. Goulding, 5 Allen, 81, 82;Crawford v. Nies, 224 Mass. 474, 490, 113 N.E. 408;Mackay v. Brock, 245 Mass. 131, 134, 139 N.E. 517;Sullivan v. Sullivan, 266 Mass. 228, 229, 165 N.E. 89. But since the case comes before us on a master's report we stand in the same position as did the trial judge (Robinson v. Pero, 272 Mass. 482, 484, 172 N.E. 599) and questions of discretion as well as of right are brought before us by this appeal. Lakin v. Lawrence, 195 Mass. 27, 28, 29, 80 N.E. 578;Mulrey v. Carberry, 204 Mass. 378, 381, 90 N.E. 576.

The basis for review of the final decree in the previous suit, if any, is the fact that the plaintiff, a defendant in that suit, had no actual notice of the pendency of the suit and that her husband failed to notify her thereof or to take any other steps to protect her rights therein. The facts found show nothing else which could bring the case within the exception to the general rule.

These facts appear. The suit was brought against both the present plaintiff and her husband. Service was made upon them at their last and usual place of abode. The processes came into the hands of the husband. ‘He understood what they were,’ knew that he and his wife were ‘summoned to appear in court’ and that they were to appear the next day.' The present plaintiff ‘was very ill.’ She ‘never saw the papers, never heard of them and knew nothing of the proceedings.’ Later a notice was received from the clerk's office notifying the present plaintiff ‘that the bill against her was taken pro confesso.’ This was received by her husband ‘and torn up without notifying’ the plaintiff. Counsel for the plaintiff in that suit sent by registered mail a letter addressed ‘Rose Alma Frechette and Alphonse L. Frechette,’ containing a copy of the decree. It was received by the husband and destroyed. He told his wife nothing about it. The ‘first actual knowledge that she had of any of the legal proceedings' in the matter was obtained when she heard from her son of the demand by Cormier for possession of the premises. The plaintiff has ‘had absolutely no business experience’ and was ‘content to leave all matters to her husband.’ Clearly on these facts the plaintiff's husband would not be entitled to a review of the decree.

We think, moreover, that justice does not require review of the decree at the suit of the plaintiff. At the time the previous suit was brought title to the property in question was in Norro, the plaintiff in that suit, and in Mrs. Frechette, the plaintiff in...