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eBook details

• Title: Cohn v. Carlisle
• Author : Supreme Judicial Court of Massachusetts
• Release Date : January 30, 1941
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 59 KB

Description

RONAN, Justice. In accordance with leave granted by the Probate Court of Franklin County to the conservator of Henry Cohn,
a libel praying for the annulment of a marriage between said Cohn and the libellee, a resident of the State of New York, was
filed by the said conservator as next friend of his ward, G.L. (Ter.Ed.) c. 208, § 7, which alleged that the ward
was insane when he went through the form of marriage with the libellee at Hartford in the State of Connecticut, on September
7, 1940. G.L. (Ter.Ed.) c. 207, § 14. A plea in abatement filed by the libellee was 'dismissed.' The Probate Court,
after a hearing, found that the ward was a resident of, and domiciled in, Greenfield in this Commonwealth at the time of the
marriage, that he was then insane and was incapable of contracting a valid marriage under the laws of the State of Connecticut
where the purported marriage took place, and entered a decree adjudicating the said marriage to be void. The libellee appealed
from the order dismissing the plea in abatement and from the final decree. The plea in abatement challenged the jurisdiction of the court on the grounds that the libellee was a resident of the State
of New York and was duly married to the libellant at Hartford, Connecticut; that the libel was not brought by the libellant;
and that the parties had not lived together as husband and wife in this Commonwealth. The plea contained prayers for a dismissal
of the libel without a hearing on the merits, for an allowance for support, expenses and costs without 'waiving this plea
in abatement.' The libellant did not object to the form of the plea and we deal with it as did the parties and the Judge as
raising the issues that it presented. Reilly v. Selectmen of Blackstone, 266 Mass. 503, 165 N.E. 660; Becker v. Zarkin, 292
Mass. 359, 198 N.E. 246; Moran v. Manning, 306 Mass. 404, 28 N.E.2d 478. The record simply shows that the plea was 'dismissed'
after a hearing. This was not an accurate description of the decision of the court, and we do not know whether the plea was
adJudged insufficient and therefore was overruled or whether the allegations of fact were not proved and therefore the plea
was disproved. We do not know what evidence was introduced and, in the absence of a report of the evidence or findings of
fact, the libellee does not show that the Judge committed any error in failing to find that any of the issue of fact raised
by the plea had been proved. Abbott v. Bean, 295 Mass. 268, 3 N.E.2d 762; Moran v. Manning, 306 Mass. 404, 28 N.E.2d 478.

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