321 Mass. 699 | Mass. | 1947
The petitioner appeals from a decree of the Probate Court dismissing her petition against her husband for separate maintenance brought under G. L. (Ter. Ed.) c. 209, § 32, as amended by St. 1938, c. 136.
The petition alleges the three grounds set forth in the statute of failure to support, desertion, and that the wife was living apart from the husband for justifiable cause. The evidence is not reported. The judge, in response to a request by the petitioner, made a report of material facts in
The petitioner complains, and it would seem with cause, of the inadequacy of these findings. The purpose of requiring a trial judge upon seasonable request to “report the material facts found by him,” whether under G. L. (Ter. Ed.) c. 215, § 11, as now appearing in St. 1947, c. 365, § 3, applicable to appeals from Probate Courts, or under G. L. (Ter. Ed.) c. 214, § 23, as now appearing in St. 1947, c. 365, § 2, applicable to appeals in equity cases from the Supreme Judicial Court or the Superior Court, is to provide a means by which a party, without incurring the expense of having all the evidence reported, can obtain a statement of the findings of the trial judge upon which his decision rested, in order to test on appeal the correctness in law of that decision. Such meager findings as are here reported obviously do not accomplish this purpose and seem better adapted to conceal errors of law than to reveal them. The circumstances in which the petitioner left her husband are not disclosed. There is nothing by which this court can test the question whether a finding that she was not living apart from him for justifiable cause was warranted. There are no findings by which we can determine whether there was error on the issue of nonsupport. The time and circumstances of the knife throwing incident and its relation to the issues in the case are not shown. For aught that appears this may have occurred years ago, and the act of the wife, even if it constituted an unjustified assault, may have been long since forgiven. It is hardly conceivable that the evidence would not have admitted of findings more complete and more helpful than these. It is true that the appealing
The question of the remedy of an appellant for an inadequate statement is another matter. The judge’s statement of material facts in response to a request under one of these statutes comes after, the entry of the decree. Although a proper statement may disclose error in the decree, mere insufficiency of the statement is not error that entered into the decree. The statement itself is not a decree, either interlocutory or final, and there can be no appeal from it as from a decree. Carilli v. Hersey, 303 Mass. 82, 87. In suits in equity in the Supreme Judicial Court and in the Superior Court there may be a remedy by bill of exceptions for a refusal to comply with a statutory request for a report of material facts. Bolster v. Attorney General, 306 Mass. 387, 388-389. Fields v. Paraskis, 318 Mass. 726, 727. And it would seem that the same remedy might be available where a report is made that on its face is obviously inadequate. Snow v. Boston Blank Book Manuf. Co. 153 Mass. 456. It has been suggested that in Probate Courts, where there are
It follows that this case must be decided solely upon the facts reported, together with any inferences which this court may properly draw from those facts. Sidlow v. Gosselin, 310 Mass. 395. Mooney v. Mooney, 317 Mass. 433, 434. Briggs v. Briggs, 319 Mass. 149, 150. It is plain that the facts reported do not sustain any of the allegations of the petition, and that no inferences can be drawn from those facts that will aid in sustaining any of those allegations.
Decree affirmed.
See Sts. 1945, e. 469, §§ 1, 2; 1946, c. 88, c. 610, § 1; 1947, cc. 97, 360.