Giles v. Giles

• Decision Date: 27 February 1936
• Citation: 293 Mass. 495,200 N.E. 378
• Parties: GILES v. GILES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 495

200 N.E. 378

GILES

v.GILES.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 27, 1936.

Suit in equity by Charles E. Giles against Julia G. Giles, who filed a cross-bill or counterclaim. From a final decree allowing the relief prayed in the cross-bill or counterclaim and dismissing plaintiff's bill after rescript, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Middlesex County; Broadhurst, Judge.

C. S. Walkup, Jr., of Boston, for appellant.

J. M. Raymond, of Boston, for appellee.

RUGG, Chief Justice.

The plaintiff brought this suit in equity against the defendant, who was then his wife, seeking to recover certain of his personal property alleged to have been taken by her. By an amended answer the defendant alleged by way of cross bill or counterclaim that prior to the marriage she lent the plaintiff $10,000, which had never been repaid. At that trial the issue as to the personal property of the plaintiff was adjudicated. It was held that the defendant could not recover against the plaintiff under her amended answer because of coverture. Giles v. Giles, 279 Mass. 284, 181 N.E. 176.

After rescript but before the entry of any final decree after rescript, the defendant filed a third amendment to her answer setting up divorce between the parties and alleging that coverture is no longer a bar to her counterclaim and praying for relief. The plaintiff answered setting up among other matters that the defendant now has a complete remedy at law. The case then came on for hearing before the same judge who had heard the case at its earlier stage in 1931. At this hearing it appeared that the parties had become divorced. Giles v. Giles, 279 Mass. 469, 181 N.E. 505. Accordingly there is no longer any bar of coverture to prevent the defendant from maintaining her claim for $10,000 lent by her to him. The trial judge made these findings: ‘I find that the trial held in 1931 before me was a full and complete hearing on the merits of the question of the loan from the defendant to the plaintiff set up by paragraph 6 of the answer as amended. The amendment to the answer setting up this claim was offered and allowed at the beginning of the trial, without objection. Evidence was offered by both parties on the issues so raised, without objection from the plaintiff. No suggestion was made that the hearing on the issues raised by paragraph 6 of the answer should be confined to the question of the capacity of the defendant to maintain the claim. It was not so confined, but full opportunity was given to both parties to present all the evidence they desired on the merits of the claim. After my findings, rulings, and order for decree, dated December 18, 1931, were filed, the plaintiff claimed an appeal to the Supreme Judicial Court, but abandoned this appeal. That appeal was based in part at least on an exception to the exclusion of certain evidence offered by the plaintiff on the issue of whether the transaction in question was a loan or a gift. After failing to object to the allowance of the amendment which set up the claim on the loan, after failing to object to there being a trial on the merits, but on the contrary proceeding with the same and producing evidence on that issue, after failing to object to the receipt of evidence offered on this issue by the defendant, and after abandoning his appeal from my former findings, rulings, order and decree, the plaintiff cannot now be heard to make the claim that the remedy at law is adequate or that the matter was not pertinent to the bill. * * * I reaffirm my former findings to the effect that the defendant loaned the plaintiff $10,000 in August, 1927, and that nothing has been repaid thereon, either interest or principal. I further find that the plaintiff is indebted to the defendant in the amount of $10,000, with interest thereon at the rate of six per cent. per annum from November 19, 1931, the date of the filing of the amended answer setting up the defendant's claim thereon, the defendant having waived all claim to interest prior to that date. A decree is to be entered adjudicating the amount of the indebtedness, ordering the plaintiff to pay the same to the defendant, and dismissing the plaintiff's bill.’

The appeal of the plaintiff from a final decree entered in conformity to this order brings the case here.

The finding of the trial judge that at the earlier hearing before him there was a full and complete hearing on the question of the loan from the defendant to the plaintiff must be accepted as final. The evidence is not reported. The only question raised by the appeal on this point is whether that conclusion is necessarily inconsistent with subsidiary findings. Tait v. Downey, 267 Mass. 422, 425, 166 N.E. 857;Columbian Insecticide Co. v. Driscoll, 271 Mass. 74, 77, 170 N.E. 804;Peabody v. Dymsza, 280 Mass. 341, 343, 182 N.E. 580;Milne v. Walsh, 285 Mass. 151, 188 N.E. 624. It is manifest that there is no such inconsistency in the case at bar. The hearing on this branch of the case could only have related to the question whether there was such loan as matter of fact. The question of law on which the decision finally turned, namely, that the defendant could not prevail because of coverture, required no evidence. Confessedly the parties were then husband and wife.

The defence of the plaintiff that this was not cognizable in equity ought to have been made when the amendment to the answer was offered by the defendant. Dearth v. Hide & Leather National Bank, 100 Mass. 540, 543. In any event, the point should have been raised seasonably by demurrer or answer. Edgett v. Palmer, ...