320 Mass. 658 | Mass. | 1947
This is a petition filed in the Probate Court .under the provisions of G. L. (Ter. Ed.) c. 231 A, inserted by St. 1945, c. 582, § 1, against the respondents Anna M. Hogan, also known as Anna Palumbo, and Frank Palumbo, both of “North Andover,” “for a binding declaration of . . . [the petitioner’s] status, in the light of the facts . . . set out [in the petition].” The case comes before us upon appeal by the petitioner from the decree entered by the judge sustaining the demurrer of the respondents and dismissing the petition.
Material allegations of the petition follow: The petitioner and the respondent Anna (hereinafter referred to as the
All the grounds of the demurrer are open on the appeal. Ratte v. Forand, 299 Mass. 185, 187. We dispose of them as follows:
1. The subject matter of the petition is one of which the court below has jurisdiction. G. L. (Ter. Ed.) c. 231A, § 1; c. 207, § 14; c. 215, § 3.
3. Laches is a question of fact. Dodge v. Anna Jaques Hospital, 301 Mass. 431, 436. The present petition appears to have been brought seasonably; and considering this ground of the demurrer in the light of our disposition above of ground 2 and what we say below concerning ground 6, we conclude that the petition does not show loches.
4. The petition alleges that an actual controversy exists concerning the question presented for determination. The allegations of the petition go farther than to show mere differences of opinion by the parties. They tend to show the existence of an actual controversy as to the marital status of the petitioner and the respondent Anna, affecting also that of Anna and the respondent Palumbo.. In proceedings for a declaratory judgment in so far as the existence of an actual controversy is required, it is sufficient that the pleadings set forth a real dispute caused by the assertion by one party of a legal relation or status or right in which he has a •definite interest and the denial of such assertion by the other party, where the circumstances, as in the present case, indicate that, unless a determination is had, subsequent litigation as to the identical subject matter will ensue. See School Committee of Cambridge v. Superintendent of Schools of Cambridge, ante, 516; Baumann v. Baumann, 250 N. Y. 382.
5. We are of opinion that it cannot be said rightly that a declaratory decree establishing the marital status of the parties will not terminate the controversy.
6. The petitioner is not estopped to set up invalidity of the decree of divorce in question entered in the State of Nevada. Cohen v. Cohen, 319 Mass. 31, 34-36, and cases cited. Coe v. Coe, ante, 295, 302-305. See Sherrer v. Sherrer, ante, 351.
The demurrer should have been overruled. But that
The judge did not decide or even reach the question of discretion. However, the appeal from the final decree, which not only sustained the demurrer but also dismissed the petition, opens for our consideration questions of discretion appearing on the face of the petition. Merchants Mutual Casualty Co. v. Leone, 298 Mass. 96, 100. We do not deem it appropriate on the mere allegations of the petition to exercise our discretion by dismissing the petition, being of opinion that the case should be heard upon the merits for final disposition.
Order sustaining demurrer reversed.
Demurrer overruled.