Sullivan v. Sullivan
| Decision Date | 15 February 1929 |
| Citation | 165 N.E. 89,266 Mass. 228 |
| Parties | SULLIVAN v. SULLIVAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Norfolk County; Joseph R. McCoole, Judge.
Petition by Michael J. Sullivan against Bridget Sullivan. From a decree dismissing defendant's petition to vacate default decree against her, defendant appeals. Reversed and rendered.M. Jenckes, of Boston, for appellee.
H. W. Loker, of Boston, for appellant.
Michael J. Sullivan brought a petition asking the probate court to enter a decree that his wife, Bridget Sullivan, deserted him, that he was living apart from her for justifiable cause, and hat he might convey his real estate as if sole. A citation issued, Mrs. Sullivan did not enter an appearance, and a decree was entered on September 19, 1928, that she had deserted her husband and that he was living apart from her for justifiable cause. On September 24, 1928, Mrs. Sullivan brought a petition in the probate court to vacate the decree of September 19, alleging that her attorney ‘by an inadvertence on his part’ failed to enter her appearance, that the decree was entered on her default. This petition was dismissed, the judge of probate ruling that the court had no jurisdiction of the subject-matter of the petition. Mrs. Sullivan appealed.
It did not appear in the petition of Mrs. Sullivan that she had a meritorious defense to the original petition. Since the judge dismissed her petition on the ground that the court had no jurisdiction to vacate the original decree, we do not consider this failure to allege that she had a good defense would prevent a revocation if the court had jurisdiction to grant her petition. A court may correct errors or mistakes of fact in its decrees. Gale v. Nickerson, 144 Mass. 415, 11 N. E. 714;Harris v. Starkey, 176 Mass. 445, 57 N. E. 698,79 Am. St. Rep. 322;Jones v. Jones, 223 Mass. 540, 112 N. E. 224. A bill of review will lie for error of law apparent on the face of the record, or for new matter arising after the decree which could not have been produced in the original case. Clapp v. Thaxter, 7 Gray, 384;Sawyer v. Davis, 136 Mass. 239, 49 Am. Rep. 27;Nashua & Lowell Railroad Corp. v. Boston & Lowell Railroad Corp., 169 Mass. 157, 47 N. E. 606. A decree may be vacated for fraud extrinsic to the issue raised at the trial, by which fraud the court was induced to assume a jurisdiction it could not have exercised if the truth had been known. Sampson v. Sampson, 223 Mass. 451, 462, 112 N. E. 84. But the rule is well settled that after the entry of a final decree the case is disposed of subject to the right of appeal; and the decree cannot be vacated because of supposed errors in the court's decision, because of false testimony on any of the issues involved, or because the case of the petitioner was not properly presented. Zeitlin v. Zeitlin, 202 Mass. 205, 88 N. E. 762,23 L. R. A. (N. S.) 569, 132 Am. St. Rep. 490;Renwick v. Macomber, 233 Mass. 530, 534, 124 N. E. 670;Wright v. Macomber, 239 Mass. 98, 101, 131 N. E. 480;Burgess v. Burgess, 256 Mass. 99, 152 N. E. 75;Fuller v. Fuller, 261 Mass. 82, 158 N. E. 333.
There is, however, a well recognized exception to this rule. That exception is stated by Chief Justice Bigelow in Thompson v. Goulding, 5 Allen,...
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