Wales v. Wales

Massachusetts Supreme Judicial Court

Wales v. Wales

119 Mass. 89, 1875 Mass. LEXIS 71

CourtMassachusetts Supreme Judicial Court

DecidedOctober 29, 1875

StatusPublished

Cited by7 cases

This text of 119 Mass. 89 (Wales v. Wales) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wales v. Wales, 119 Mass. 89, 1875 Mass. LEXIS 71 (Mass. 1875).

Pincite

Opinion

Gray, C. J.

The original libel was filed under the St. of 1870, e. 404, for utter desertion, which, not having continued for five years, was not a cause for a divorce from the bond of matrimony under the.Gen. Sts. c. 107, § 7.

Under the St. of 1870, the court could not decree a divorce from the bond of matrimony for the cause alleged, but only a divorce nisi, which was in the nature of a divorce from bed and board, did not dissolve the marriage, and could not be made absolute except upon a new petition filed not less than three years from the time of the first decree. St. 1870, c. 404, §§ 2, 3. Graves v. Graves, 108 Mass. 314. Edgerly v. Edgerly, 112 Mass. 53.

The St. of 1873, c. 371, § 2, repealed the provision of the St. of 1870 authorizing the court to grant a divorce nisi, but authorized a divorce from the bond of matrimony to be granted for the cause of desertion continued for three consecutive years before the filing of the libel for such divorce. As applied to cases of desertion, this statute merely changed and simplified the form of remedy, by substituting, for the double proceeding of a libel for a divorce nisi, and a petition to make it absolute at the expiration of not less than three years afterwards, as allowed by the St. of 1870, a single proceeding by a libel for an absolute divorce after the desertion had continued for three years. Such a modification of the remedy, in cases in which no judicial decree had been ren dered, was clearly within the constitutional power of the Legisla [91]*91turc, and not open to the objections upon which the St. of 1874, c. 397,1 1, was declared void in Sparhawk v. Sparhawk, 116 Mass. 315.

It follows that the decree of divorce nisi, granted in this case since the St. of 1873 took effect, was by inadvertence, without authority, and of no legal effect, and should therefore be set aside and vacated. Edson v. Edson, 108 Mass. 590. Ex parte Crenshaw, 15 Pet. 119. Collins v. Taylor, 3 Green Ch. 163.

Petition granted.

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Gray, C. J.

The original libel was filed under the St. of 1870, e. 404, for utter desertion, which, not having continued for five years, was not a cause for a divorce from the bond of matrimony under the.Gen. Sts. c. 107, § 7.

Under the St. of 1870, the court could not decree a divorce from the bond of matrimony for the cause alleged, but only a divorce nisi, which was in the nature of a divorce from bed and board, did not dissolve the marriage, and could not be made absolute except upon a new petition filed not less than three years from the time of the first decree. St. 1870, c. 404, §§ 2, 3. Graves v. Graves, 108 Mass. 314. Edgerly v. Edgerly, 112 Mass. 53.

The St. of 1873, c. 371, § 2, repealed the provision of the St. of 1870 authorizing the court to grant a divorce nisi, but authorized a divorce from the bond of matrimony to be granted for the cause of desertion continued for three consecutive years before the filing of the libel for such divorce. As applied to cases of desertion, this statute merely changed and simplified the form of remedy, by substituting, for the double proceeding of a libel for a divorce nisi, and a petition to make it absolute at the expiration of not less than three years afterwards, as allowed by the St. of 1870, a single proceeding by a libel for an absolute divorce after the desertion had continued for three years. Such a modification of the remedy, in cases in which no judicial decree had been ren dered, was clearly within the constitutional power of the Legisla [91]*91turc, and not open to the objections upon which the St. of 1874, c. 397,1 1, was declared void in Sparhawk v. Sparhawk, 116 Mass. 315.

It follows that the decree of divorce nisi, granted in this case since the St. of 1873 took effect, was by inadvertence, without authority, and of no legal effect, and should therefore be set aside and vacated. Edson v. Edson, 108 Mass. 590. Ex parte Crenshaw, 15 Pet. 119. Collins v. Taylor, 3 Green Ch. 163.

Petition granted.

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119 Mass. 89, 1875 Mass. LEXIS 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wales-v-wales-mass-1875.

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