Golder v. Golder

126 N.E. 382, 235 Mass. 261, 1920 Mass. LEXIS 707

• Court: Massachusetts Supreme Judicial Court
• Decided: March 5, 1920
• Status: Published

Opinion

Braley, J.

The defendant, while conceding the validity of the judgment on the interlocutory order awarding alimony to the plaintiff in her libel for divorce which still is pending in the State of Maine, contends, that the present action brought in contract for the amount cannot be maintained.

If a final and absolute decree had been entered, the bonds of matrimony would have been dissolved, and the remedy at law would be complete. Page v. Page, 189 Mass. 85. Wells v. Wells, 209 Mass. 282, 288. Taylor v. Stowe, 218 Mass. 248. But in the absence of a final decree the parties are husband and wife. A right of action at common law originating in another State doubtless may be enforced here if jurisdiction of the defendant appears, and a right of action given by a statute of another State also is enforceable unless it is against the policy of our laws. Howarth v. Lombard, 175 Mass. 570, 572. Converse v. Ayer, 197 Mass. 443. Walsh v. Boston & Maine Railroad, 201 Mass. 527. The laws of Maine however relating to actions between husband and wife not appearing, the law of the forum governs. Chicago Title & Trust Co. v. Smith, 185 Mass. 363. Callender, McAuslan & Troup Co. v. Flint, 187 Mass. 104. Sistare v. Sistare, 218 U. S. 1, 26. And if by R. L. c. 153, § 6, as affected by St. 1910, c. 576, a married woman may sue and be sued as if she were sole, yet this provision “shall not authorize suits between husband and wife.” It follows that the common law bars recovery. Nolin v. Pearson, 191 Mass. 283. Atkins v. Atkins, 195 Mass. 124, 128. The question whether she can proceed in equity is not before us. See White v. White, 233 Mass. 39.

The ruling of the trial judge that the plaintiff could recover was erroneous, and the order of the Appellate Division, that judgment should be entered for the defendant, must be affirmed.

So ordered.