Miller v. Miller, 150 Mass. 111

150 Mass. 111 | Mass. | 1889

Knowlton, J.

By a decree of the Probate Court, in force at the time of the hearing in this case, it was adjudged that the libellee was living apart from her husband for justifiable cause. The court had jurisdiction of the case, and of the parties, and the decree has the same binding effect as if it were made by any other court of competent jurisdiction. Smith v. Rice, 11 Mass. 507. Emery v. Hildreth, 2 Gray, 228. Pierce v. Prescott, 128 Mass. 140. McKim v. Doane, 137 Mass. 195.

The fact determined by it is inconsistent with the necessary allegation in the libel, that the libellee previously had utterly deserted the libellant, and was then continuing such desertion. Utter desertion, which is recognized by the statute as a cause for divorce, is a marital wrong. Because the deserter is a wrongdoer, the law gives the deserted party a right to a divorce. If a wife leaves her husband for a justifiable cause, it is not utter desertion within the meaning of the statute, and a wife who has utterly deserted her husband and is living apart from him in continuance of such desertion cannot be found to be so living for justifiable cause. Pidge v. Pidge, 3 Met. 257, 261. Fera v. Fera, 98 Mass. 155. Lyster v. Lyster, 111 Mass. 327.

The court should have ruled, as requested by the libellee, that the decree of the Probate Court was a bar to the maintenance of this libel. Exceptions sustained.