Day v. Day

236 Mass. 362 | Mass. | 1920

Jenney, J.

Earl W. Day contends that he is entitled to have his marriage with Margaret E. McClellan annulled, because it was procured by “duress and false imprisonment” while he was under arrest charged with getting said McClellan with child. See St. 1913, c. 563.

The libellant was arrested on said charge on May 2, 1918, and was taken before the Second District Court of Southern Worcester. The conflicting evidence warranted findings, (1) that the libellant, who was represented by counsel, voluntarily changed his plea of not guilty to that of nolo contendere, which plea was accepted by the presiding judge, and (2) that without coercion or fraud he married the libellee. He remained in the custody of the arresting officer until the ceremony had been performed and was then released, his case having been placed on file upon the payment by him of certain expenses of prosecution. The evidence did not require a finding that the arrest was made maliciously or without probable cause.

At the close of the evidence, the libellant requested the trial judge to rule that he was entitled to have the marriage annulled, because he was falsely imprisoned at the time of his marriage. This ruling could not have been given properly. On the evidence the judge could have found that the libellant, who had been lawfully arrested, consented to a continuance of the proceedings until he had an opportunity to marry the libellee, and that the officer kept him in custody while the case was continued for the purpose of enabling the marriage to take place; that he chose to marry the libellee instead of contesting the charge; and that the restraint was not for the purpose of coercing him to marry the libellee. If such were the facts, he was not entitled to have the marriage annulled for the cause set forth in his request. Wimbrough v. Wimbrough, 125 Md. 619. Seyer v. Seyer, 10 Stew. 210. Jackson v. Winne, 7 Wend. 47. Scott v. Shufeldt, 5 Paige, 43. Williams v. State, 44 Ala. 24.

An order having been entered for the dismissal of the libel, thé case must be considered on the basis that the issuable facts were found against the libellant, and the general exception to that disposal of it also must be overruled.

Exceptions overruled.