Osgood v. Osgood
| Decision Date | 09 January 1891 |
| Citation | 153 Mass. 38,26 N.E. 413 |
| Parties | OSGOOD v. OSGOOD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from superior court, Essex county JUSTIN DEWEY, Judge.
HEADNOTES
Husband and Wife 290
205 ----
205VIII Separation and Separate Maintenance
205k285 Actions for Separate Maintenance
205k290 Parties and Process in General.
Under Pub.St. c. 147, § 33, giving the probate court jurisdiction of proceedings by the wife against her husband for separate maintenance, and impliedly authorizing the summons of defendant by publication, as prescribed by Id. c 146, § 9, which authorizes service by publication as may seem proper to the court, it is within the discretion of the probate judge to fix the length of time between the last publication and the return day, and an order fixing two days as that time is sufficient.
N.P Frye, for Edwin B. Osgood.
C.U. Bell, for Jennie Osgood.
This is a petition under Pub.St. c. 147, § 33, giving to the probate court jurisdiction of proceedings by a wife against her husband for protection and separate maintenance in certain cases. The probate court ordered notice by publication once a week, for three successive weeks, the last publication to be two days at least before the court at which the respondent was summoned to appear. The respondent had no domicile within the commonwealth, and appeared specially in the probate court, and objected that the notice was insufficient. The probate court made a decree in favor of the petitioner. The respondent then appealed to the superior court. St.1887, c. 332, § 3. The superior court ordered the decree of the probate court to be affirmed, subject to the single question raised by the respondent's exceptions, whether sufficient notice was given to enable the probate court to take jurisdiction.
In Blackinton v. Blackinton, 141 Mass. 432, 436, 5. N.E. 830, it was said that section 33 was intended tacitly to adopt the rules of service expressly laid down for divorce. The counsel for the respondent seems to understand this statement as meaning that the statute tacitly adopted for the probate court such rules as might be established by the court having jurisdiction of divorce for its own government in cases of divorce. But that was not our meaning. The meaning was that section 33 adopted the rules laid down elsewhere by the statute, as was shown by the reference to Pub.St. c. 146,§ 9. In other words, Pub.St. c. 147, § 33, impliedly authorizes the probate court to order the defendant to be summoned to appear and answer, by the publication of the petition, or of the substance thereof, etc., mutatis mutandis as in Pub.St. c. 146, § 9. The length of time between the last publication and the return-day is a matter left to the discretion of the probate judge, so far as not governed by the rules of the court.
It is true that originally the jurisdiction over this class of cases was in the supreme judicial court, and while it was...
To continue reading
Request your trial
-
Wagoner v. Wagoner
...in form to afford the requisite notice. Clemson College v. Pickens, 49 S. Car. 511; Jasper County v. Wadlow, 82 Mo. 172; Osgood v. Osgood, 153 Mass. 38; Lewis Weidenfeld, 114 Mich. 581; National Bank of New York v. Bank of Boston, 89 N.Y. 397; Sherman v. Sherman, 111 P. 286 (Nev.) ; Pratt v......
-
Nolin v. Pearson
... ... Hanlon v ... Thayer, Quincy, 99, 1 Am. Dec. 1; Fowler v ... Shearer, 7 Mass. 14; Legg v. Legg, 8 Mass. 99; ... Osgood v. Breed, 12 Mass. 525; Lowell v ... Daniels, 2 Gray, 161, 168, 61 Am. Dec. 448; Hawkins ... v. Providence & Worcester Railroad Co., 119 Mass ... ...
-
Rhoades v. Rhoades
...invested with jurisdiction to render such judgment against the property as the facts proven might warrant.” See, also, Osgood v. Osgood, 153 Mass. 38, 26 N. E. 413;Blackinton v. Blackinton, 141 Mass. 432, 5 N. E. 830, 55 Am. Rep. 484. It must be borne in mind that the object of the proceedi......
-
Bradford v. City of Worcester
... ... a separate domicile. Burties v. Burtis, 161 Mass ... 508, 37 N.E. 740; Pub. St. 1882, c. 147, § 31-34; Osgood ... v. Osgood, 153 Mass. 38, 39, 26 N.E. 413 ... Under ... the facts disclosed, Mary A. Williams could have instituted ... ...