150 Mass. 92 | Mass. | 1889
An attachment of the real estate of the husband had been lawfully made by an order of the Probate Court, to a specified amount, in a proceeding by the wife praying for a separate support and the custody of her children. Pub. Sts. c. 147, §§ 33, 34, 35, and c. 146, §§ 11, 12, 15, 33, 37. An execution had been issued for non-payment of certain arrears of the allowance ordered by the Probate Court, and had been levied by sale of certain lots of land of the husband included in the attachment, but not of all of them. This execution and the sale thereon had been for an amount much less than that of the attachment.
The case presents the question, whether a new and additional execution might be issued for the amount of arrears which subsequently became due, and whether under it a sale may be made of the other real estate of the husband which would
The attachment in a proceeding for separate maintenance is made “ as in the case of a libel for divorce.” Pub. Sts. c. 147, § 35. While it is provided that real or personal estate attached shall be held only for thirty days after final judgment for the plaintiff, the laws relating to attachments in suits at common law or in equity do not apply except so far as they are not inconsistent with the sections of the statutes which permit such attachments in cases like the one at bar. In libels for divorce, or petitions for separate maintenance, there is no final judgment which closes the proceeding as ordinary- actions are terminated. The orders and decrees in reference to support, alimony, etc., remain open always to revision, and the purpose of an attachment is to secure such suitable support and maintenance to the wife and her children as may be awarded, by enabling the court to enforce its decrees, as they may be originally made or modified, upon the property thus sequestered. Chase v. Ingalls, 97 Mass. 524. Burrows v. Purple, 107 Mass. 428. Barney v. Tourtellotte, 138 Mass. 106.
It has been held in Allen v. Allen, 100 Mass. 373, that an action at common law would not lie to recover arrears of alimony, and this for the reason that the court granting the alimony had power to revise and alter its decrees, or to make any other decree in such matters that it might have made in the original suit. Slade v. Slade, 106 Mass. 499. The same reason is applicable in cases of separate maintenance. The party in whose favor a
The demandant objects that the original attachment was not valid because the officer’s return did not show that he had deposited a copy of the petition, etc., in the clerk’s office. The officer was permitted to amend his return in accordance with what the Probate Court must have found to be the fact. He was not allowed to do any act in order to complete his attachment, but to state truly what he had done in making it. The amended return, when allowed, became a part of the records of the court, and showed the attachment on which the tenant relied.
Judgment for the tenant.