318 Mass. 677 | Mass. | 1945
The bill originally filed in this cause on May 31, 1944, alleged that the parties were husband and wife; that in- compliance with an order of the defendant the plaintiff left the house in which they were living together and has not lived there since; that the plaintiff was the owner of a washing machine, an oil burner,, and other articles of per
“The interlocutory decree taking the bill for confessed did not ensure a decree for the plaintiff. It only established as true the facts properly pleaded, and required the entry of whatever decree those facts demanded.” Mayor of Cambridge v. Dean, 300 Mass. 174, 175, and cases cited. Thomson v. Wooster, 114 U. S. 104. Such vague conclusions as that the defendant has unlawfully or wrongfully withheld and concealed the plaintiff’s property from him are not in themselves allegations of fact well pleaded, and if they have any force at all must depend for it upon the preceding more specific allegations of fact. Medford v. Metropolitan District Commission, 303 Mass. 537, 539. Moriarty v. King, 317 Mass. 210, 216, and cases cited.
The more specific allegations of fact were enough to show that a controversy existed between husband and wife as to the title to the washing machine and the oil burner and to justify some form of relief to enable him to enforce his property rights in these items. Patterson v. Patterson, 197 Mass. 112. MacKenzie v. MacKenzie, 306 Mass. 291. Levy v. Levy, 309 Mass. 486, 491. But we think there was error in the decree in giving the husband damages to the amount of their value, as for a conversion by the wife. We need not go so far as to say that damages can never be awarded in equity between husband and wife with respect to chattels, as for instance in cases of breach of trust or where the property is fraudulently put beyond reach or possibly as part of or incident to some purely equitable remedy. We lay any such possible cases at one side. There is nothing of that kind here. The chattels are in existence, and possession of them can be restored to the plaintiff. A proper decree would have declared the husband’s title to the chattels, would have protected them against removal or secretion .by the wife, and would have enabled the husband to regain possession of them. This was the type of relief granted in the MacKenzie and Levy cases above cited. It was stated in Gahm v. Gahm, 243 Mass. 374, 376, that there is “jurisdiction in equity over suits between husband
In so far as the final decree includes damages with respect to items other than the washing machine and the oil burner, as we think the language of the trial judge in his finding shows it does, it is still further open to the objection already discussed that it gives relief in damages for tort as in an action at law.
If the posture of the case in the trial court is not changed by amendment or otherwise, it will be necessary to consider whether the case is ripe for a final decree in any form.' After the original bill had been taken for confessed amendments were allowed. If these amendments made anj^ material change in the case presented it would seem that the defendant’s failure to appear to the original bill did not amount to a confession of the changed bill. The general rule seems to be that material amendments have the effect of vacating a decree taking the original bill for confessed and of giving the defendant the right to come in and defend to the entire bill as amended, at least until the amended bill shall in turn have been taken for confessed for further default on the part of the defendant. Pearce v. Kennedy, 232 Ala. 107, 109. Gibson v. Rees, 50 Ill. 383, 406. South Chicago Brewing Co. v. Taylor, 205 Ill. 132, 142. Fogg v. Merrill, 74 Maine, 523. Harris v. Deitrich, 29 Mich. 366. Reno’s
Decree reversed.