Olsen v. Olsen

• Decision Date: 29 May 1936
• Citation: 294 Mass. 507,2 N.E.2d 475
• Parties: OLSEN v. OLSEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 507

2 N.E.2d 475

OLSEN v. OLSEN.

Supreme Judicial Court of Massachusetts, Essex.

May 29, 1936

Proceeding on a petition for separate maintenance by Marie M Olsen against Carl A. Olsen, in the probate court for the county of Essex. From a decree entered by order of the trial judge on April 7, 1936, the respondent appeals.

Reversed.

Appeal from Probate Court, Essex County; Dow, Judge.

W. H. McSweeney, of Salem, for appellant.

E. C Jacobs and E. J. Coughlin, both of Lynn, for appellee.

LUMMUS, Justice.

On April 29, 1935, upon a petition for separate support between the parties, a decree was entered in these terms: ‘ It appearing to the court that said Carl A. Olsen has been cruel and abusive towards the petitioner but that said petitioner is not actually living apart from the respondent within the meaning of G.L.(Ter.Ed.) c. 209, § 32, it is decreed that said petition be dismissed.’ It does not appear whether the form of the petition restricted the inquiry so that relief could not be given unless the petitioner proved that she was ‘ actually living apart from her husband.’ See Bucknam v. Bucknam, 176 Mass. 229, 57 N.E. 343,49 L.R.A. 735; McIlroy v. McIlroy, 208 Mass. 458, 464, 94 N.E. 696, Ann.Cas.1912A, 934; Marshall v. Marshall, 236 Mass. 248, 128 N.E. 27; Farrell v. Farrell, 262 Mass. 209, 159 N.E. 495.At any rate, no appeal was taken by either party from that decree.

Subsequently the petitioner left the house in which the respondent was living, and took up her abode elsewhere. Never having condoned the cruel and abusive treatment upon which was based the petition already mentioned, she filed a new petition for separate support, based on that treatment. At the hearing, no evidence of cruel and abusive treatment was offered, except the decree of April 29, 1935. This the judge admitted. Upon it he found the respondent guilty of cruel and abusive treatment, and entered a decree against him. The respondent appealed.

Ordinarily only a final judgment or decree, as distinguished from a mere finding, amounts to an adjudication or becomes evidence of a fact in another case. Boston Food Products Co. v. Wilson & Co., 245 Mass. 550, 558, 139 N.E. 637; New York Central & Hudson River Railroad Co. v. T. Stuart & Son Co., 260 Mass. 242, 248, 157 N.E. 540; Guild v. Cohen, 269 Mass. 241, 168 N.E. 725; Hart v. Brierley, 189 Mass. 598, 604, 76 N.E. 286; Bannon v. Bannon, 270 N.Y. 484, 1 N.E.(2d) 975.This rule has been relaxed to give effect to a verdict upon which judgment will follow in due course. Downer v. Cripps, 170 Mass. 345, 347, 49 N.E. 644.In equity cases declarations of fact or of right are sometimes inserted in the ordering or adjudicating part of a decree and thus become directly adjudicated. Such declarations are generally if not always confined to the facts or rights upon which the ultimate result rests, and their purpose is to leave no doubt as to the basis of that result. Pingree v. Coffin, 12 Gray, 288, 311, 312; Baylies v. Payson, 5 Allen, 473, 489; Braman v. Foss, 204 Mass. 404, 409, 90 N.E. 563; Fairfield v. Lowry, 207 Mass. 352, 357, 359, 93 N.E. 598; Murray v. Murray, 227 Mass. 345, 346, 347, 349, 116 N.E. 503; Stuart v. Roche, 264 Mass. 63, 64, 161 N.E. 624; Davidson v. Zieman, 283 Mass. 492, 496, 186 N.E. 651.There was no such declaration in the decree of April 29, 1935. The words ‘ It appearing to the court’ are the traditional words of finding, not of adjudication. We have only a finding of cruel and abusive treatment, followed by a denial on other grounds of the relief which ordinarily would follow that finding.

A fact merely found becomes adjudicated by a final judgment or decree only when it is shown to have been the basis of the relief, denial of relief or other ultimate right established by the judgment or decree. Knowlton v. Swampscott, 280 Mass. 69, 181 N.E. 849; Martin v. Smith, 286 Mass. 227, 234, 190 N.E. 113; Eastman v. Symonds, 108 Mass. 567, 569; Foster v. The Richard Busteed, 100 Mass. 409, 411, 412,1 Am.Rep. 125; Foye v Patch, 132 Mass. 105, 111.‘ A verdict and judgment are conclusive by way of estoppel only as to those facts which were necessarily involved in them, without the existence and proof or admission of which such a verdict and judgment could not have been rendered. * * * The estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps or the groundwork upon which it must have...