Webster v. Webster

• Decision Date: 10 October 1928
• Citation: 163 N.E. 197,264 Mass. 551
• Parties: WEBSTER v. WEBSTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 551

163 N.E. 197

WEBSTER

v.WEBSTER.

Supreme Judicial Court of Massachusetts, Hampshire.

Oct. 10, 1928.

Appeal from Probate Court, Hampshire County; H. P. Field, Judge.

Libel for divorce by Irene M. Webster against Lloyd Webster. From a decree of dismissal, libelant appeals. Affirmed.

J. F. Henry, of Northampton, for appellant.

J. A. G. Andre and W. L. Stevens, both of Northampton, for appellee.

RUGG, C. J.

This is a libel for divorce by the wife against the husband. The causes set forth in the libel as amended are (1) cruel and, abusive treatment and (2) gross or wanton and cruel refusal or neglect to provide suitable maintenance for the libelant by the libelee, he being of sufficient ability. A decree was entered dismissing the libel without prejudice. There is no report of the evidence, but the judge made a finding of material facts. The appeal of the libelant brings the case here.

Counsel for the libelee appeared on July 18, 1927. After specifications had been ordered and answered and interrogatories filed and answered, the libelee filed an answer on November 10. The case came on to be heard on November 23, 1927. The libelant then filed a motion that no evidence be received under the answer because the libelee had failed to comply with the rule of the probate court to the effect that a contesting libelee shall ‘forthwith; file an answer. This rule of court has the force of law and the court has no power to dispense with it. Nevertheless, it does not prevent the court from proceeding to a full hearing and receiving all competent evidence pertinent to the fundamental question whether the libel ought to be granted. Merely procedural rights of parties are not necessarily coextensive with the duty of the court touching the termination of the state of matrimony between libelant and libelee. The libelant did not move to have the answer stricken from the files, nor ask for a continuance. Morrison v. Morrison, 136 Mass. 310. The rule further provides that ‘no affirmative defense shall be heard unless set up by the answer.’ There is no transcript of the evidence. There is no report by the judge of any seasonable objection to evidence based upon violation of this rule. There is nothing to indicate an ‘affirmative defense’ presented by the libelee, nor anything more than a challenge of the truth of the allegations of the libel. Evidence bearing on these allegations might be received and considered.

It is not necessary to narrate in detail the report of the judge. He saw the libelant and libelee and heard the oral testimony of them and their witnesses. His findings must be accepted as true in the absence of a full report of the evidence. Drew v. Drew, 250 Mass. 41, 44, 144 N. E. 763.

The finding of the judge is express to the effect that he was not satisfied that there was any cruel or abusive treatment or injury to the libelant as claimed. This was a pure question of fact. On it the decision of the judge is decisive. No evidence is recited and no facts are found shaking his conclusion. On this point the case is well within the authority of numerous decided cases: Bonney v. Bonney, 175 Mass. 7, 55 N. E. 461,78 Am. St....