Silva v. Silva

• Decision Date: 17 April 1937
• Citation: 297 Mass. 217,7 N.E.2d 601
• Parties: SILVA v. SILVA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 217

7 N.E.2d 601

SILVA

v.SILVA.

Supreme Judicial Court of Massachusetts, Bristol.

April 17, 1937.

Divorce proceeding by Angelo R. Silva against Maria M. Silva, wherein libellee filed a statement of objections within six months after a decree nisi for desertion was entered. From a decree dismissing the objections and making the decree nisi absolute, libellee appeals.

Affirmed.Appeal from Probate Court, Bristol County; Hitch, Judge.

E. A. Hathaway, of Taunton, for appellee.

QUA, Justice.

Within six months after a decree nisi for desertion the libellee filed a statement of objections. G.L.(Ter.Ed.) c. 208, § 21. Rule 40 of the Probate Courts (1934). One objection was that the libellant ‘has been convicted of neglect of family,’ with a reference to G.L. c. 273, § 1. At the hearing on the objections the trial judge excluded evidence as to criminal proceedings on complaints by the libellee against the libellant, apparently for non-support. Upon one of these the libellant was found guilty and ordered to pay weekly for the support of the libellee. G.L.(Ter.Ed.) c. 273, § 5. Upon another he was fined and ordered to pay the fine to a probation officer for the benefit of the libellee. G.L.(Ter.Ed.) c. 273, § 3. Although the record is not plain, we assume for the purposes of this decision that in at least one instance the libellant was convicted for unreasonably neglecting or refusing to support the libellee within the period of the alleged desertion by the libellee for which the decree nisi was granted.

The ruling was right. We think that the ‘traditional rule’ by which ‘a defendant convicted of crime is entitled to re-try the question whether he actually committed the crime, when that issue arises in a civil proceeding to which the Commonwealth is not a party’ [Minasian v. Aetna Life Ins. Co. (Mass.) 3 N.E.(2d) 17, 18, and cases cited] must be deemed to be law in this jurisdiction. Mead v. Boston, 3 Cush. 404, 407;Commonwealth v. Lincoln, 110 Mass. 410;Commonwealth v. Cheney, 141 Mass. 102, 106, 6 N.E. 724,55 Am.Rep. 448;Parker v. Kenyon, 112 Mass. 264;Fowle v. Child, 164 Mass. 210, 41 N.E. 291,49 Am.St.Rep. 451;Fitzgerald v. Lewis, 164 Mass. 495, 41 N.E. 687;Commonwealth v. Simmons, 165 Mass. 356, 358, 43 N.E. 110. In Commonwealth v. Waters, 11 Gray, 81, 83, it is said that ‘That judgment is effectual only between those upon whom its operation is mutual, and therefore he against whom it can in no respect be enforced is not...