Malcolm v. Malcolm
| Decision Date | 15 October 1926 |
| Citation | 153 N.E. 461,257 Mass. 225 |
| Parties | MALCOLM v. MALCOLM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal and Report from Probate Court, Middlesex County; Leggat, Judge.
Libel for divorce by George F. Malcolm against Maude E. Malcolm. From decree dismissing petition of libellant for rehearing for newly discovered evidence, libellant appeals, and case was reported. Decree dismissing petition reversed.McLellan, Brickley & Sears, B. A. Brickley, and W. E. Brownell, all of Boston, for appellant.
L. Withington, of Boston, for appellee.
This is an appeal filed by a libellant as of December 24, 1925, by consent of the libellee, and with the allowance of the judge of probate for the county of Middlesex, from a decree of said judge, entered in the probate court for said county on December 23, 1925, whereby said judge dismissed a petition of one George F. Malcolm of Newton in the county of Middlesex ‘praying for a rehearing of his libel for divorce and that the court hear certain newly discovered evidence which he offered.’
The facts disclosed in the report of the judge of probate in substance are as follows: March 18, 1925, one George F. Malcolm filed in the probate court for the county of Middlesex a libel for divorce against his wife, Maude E. Malcolm, alleging cruel and abusive treatment. A hearing was had on said libel, and the judge of probate, without a finding that the divorce ought not to be granted; without a finding that the libellant's conduct had been such as to justify the libellee in living apart and that she was then living apart from him for justifiable cause (G. L. c. 209, § 32; De Ferrari v. De Ferrari, 220 Mass. 38, 107 N. E. 404); and without a finding that the libel was sustained by the evidence or otherwise (Waterhouse v. Waterhouse, 225 Mass. 228, 114 N. E. 283), ordered a decree which was entered on June 18, 1925, in the following form:
‘It is decreed said libel be continued on the docket and that the said libellant pay to the said libellee as alimony the sum of $1,500 on the first day of July, A. D. 1925, and the further sum of $1,500 on the first day of each and every month thereafter until the further order of the court.’
Thereafter, on October 3, 1925, the libellant filed in said case a petition wherein was set out at length the proceedings theretofore had, the decree above quoted, and allegations that ‘no final decree has ever been entered on said libel,’ that in a desire ‘to refrain from unnecessarily derogating the character and reputation’ of the libellee and of a third person and acting on the advice of his counsel he did not present evidence in substantiation of the allegations of the libel, a part of which concerned charges of ‘intimate relations existing between * * * [the] petitioner and the libellee together with correspondence between said libelee and a third person’; that since the hearing ‘certain evidence not available to him at the time of said hearing’ has been discovered, which evidence could not have been discovered by the exercise of reasonable diligence; and that ‘a true and complete presentation of the real facts will materially alter the character of the evidence heretofore presented.’ The petition further stated that, because of the nature of the evidence the petitioner ‘desires to present he will refrain from attaching hereto affidavits referring thereto until ordered so to do, but is now and at all times will be ready and willing so to do when ordered by this honorable court. ‘In relation to the nonfiling of affidavits the parties filed the following stipulation: It is ‘stipulated and agreed by and between the parties that counsel for said Maude E. Malcolm [the libellee] will not argue or contend that said petition is defective as a matter of form by reason of the absence of affidavits in support of said petition.’ To this petition the libellee demurred and also filed a ...
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Reddington v. Reddington
...the children. De Ferrari v. De Ferrari, 220 Mass. 38, 107 N.E. 404;Harrington v. Harrington, 254 Mass. 506, 150 N.E. 296;Malcolm v. Malcolm, 257 Mass. 225, 153 N.E. 461. The libelant and the alleged corespondent appealed. Divorce from the bond of matrimony in the regular judicial courts was......
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...N.E.2d 388. See also Perkins v. Perkins, 225 Mass. 392, 397, 398, 114 N.E. 713. Such petition may be by either party. Malcolm v. Malcolm, 257 Mass. 225, 228, 153 N.E. 461. In his report of material facts the judge found as follows: Mrs. Coe's physical condition ‘has changed greatly since th......
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...the support of the libellant and the children. DeFerrari v. DeFerrari, 220 Mass. 38 . Harrington v. Harrington, 254 Mass. 506 . Malcolm v. Malcolm, 257 Mass. 225 . The and the alleged corespondent appealed. Divorce from the bond of matrimony in the regular judicial courts was first provided......
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