322 Mass. 461 | Mass. | 1948
This bill in equity comes before us on the report of the judge of the Superior Court of his action in overruling the plea to the jurisdiction of the defendants Mildred N. White, wife of the plaintiff, and Mary Brownell, her mother. The other defendants are the First National Bank of Attleboro and the Manufacturers National Bank of North Attleboro.
The report of the judge is substantially as follows: “The above entitled cause came on for hearing before me on the bill of complaint and the plea of the defendants, Mildred N. White and Mary Brownell to the jurisdiction of this court. On March 18, 1947, the bill of complaint was presented to the court and was entered in this court on March 19, 1947, alleging that the plaintiff and the defendant, Mildred N. White, were married on December 21, 1921. ... On September 12, 1944, the present plaintiff filed a libel for divorce against the defendant, Mildred N. White in the Probate Court for the county of Bristol, which libel is still pending. The plaintiff- seeks to have established his ownership in certain property held jointly by him and his wife, Mildred N. White, and because of such ownership, to have the defendant Mildred N. White account to the plaintiff for all moneys, investments, and purchases made by her from proceeds of said joint property.
General Laws (Ter. Ed.) c. 208, § 33, as appearing in St. 1936, c. 221, § 1, provides as follows: “The court may, if the course of proceeding is not specially prescribed, hear and determine all matters coming within the purview of this chapter according to the course of proceedings in ecclesiastical courts or in courts of equity, and may issue process of attachment and execution and all other proper and necessary processes. In such proceedings the court shall have jurisdiction in equity of all causes cognizable under the general principles of equity jurisprudence, arising between husband and wife, such jurisdiction to be exercised in accordance with the usual course of practice in equity proceedings.” The last sentence of the section, with which we are particularly concerned here, was added by St. 1936, c. 221, § 1, and was construed in the case of MacLennan v. MacLennan, 311 Mass. 709. In that case it was pointed out in substance that the statute as amended did not transform- a libel for divorce, a proceeding at law (see Watts v. Watts, 312 Mass. 442, 445-449, and cases cited), into a proceeding in equity, but simply conferred upon “the court” which hears a matter coming within the purview of c. 208 or one relating to separate support (see c. 209, § 32, as amended) jurisdiction of all causes cognizable under the general principles of equity jurisprudence between husband and wife, but that nevertheless that jurisdiction is to be
Suits in equity between husband and wife concerning the title to property form a long established head of equity jurisdiction, Frankel v. Frankel, 173 Mass. 214, 215, and cases cited; Patterson v. Patterson, 197 Mass. 112; MacLen-nan v. MacLennan, 311 Mass. 709, 712; Matek v. Matek, 318 Mass. 677, 679; Yurkanis v. Yurkanis, 321 Mass. 375, 380, within the concurrent jurisdiction of the Supreme Judicial and the Superior Courts, as a subject cognizable under the general principles of equity jurisdiction. G. L. (Ter. Ed.) c. 214, § 1. See Pomeroy, Equity Jurisprudence, §§ 1098, 1106. By the statute under consideration a concurrent jurisdiction of that subject matter was conferred upon the Probate Courts in divorce and separate support proceedings, a jurisdiction not previously conferred upon the Probate Courts, which have jurisdiction only of such matters cognizable under the general principles of equity jurisprudence as may be specifically conferred upon them by statute. See G. L. (Ter. Ed.) c. 215, § 6, as amended.
It is settled that where "different courts of the same sovereign power have concurrent jurisdiction of the same causes, the one whose jurisdiction is first duly invoked has authority paramount over other courts. It acquires exclusive jurisdiction over the subject and so long as the proceeding is pending before it no action can be taken by any other court.” Old Colony Trust Co. v. Segal, 280 Mass. 212, 214-215, and cases cited.
In the present case, however, the causes described in the present bill had not been put in litigation in the proceedings pending in the Probate Court by any form of petition in equity concerning the same. The mere filing of the libel for divorce and of the petition for separate support in the
The interlocutory decree entered by the judge overruling the plea to the jurisdiction is
Affirmed.
By the bill the plaintiff also seeks as to all the defendants certain temporary restraining orders in the nature of equitable attachments.