Boyd v. Boyd , 226 Mass. 542 ( 1917 )

Loring, J.

This is a petition by a husband to vacate a decree dismissing a libel brought by him for divorce. The libel in question and a cross libel brought by the wife were tried together on the merits. Both parties were represented by counsel. After a full trial both libels were dismissed. Two years later this petition was brought by the husband to vacate the decree dismissing the libel, brought by him. This petition to vacate is based on the ground that at the trial of the original libel testimony of adultery committed by him was put in evidence and that that testimony was false and on the ground that "by reason of the manner in which the said cause was tried by the then counsel for your petitioner” [he was deprived of a full and just hearing upon his original cause of action.

When the petition to vacate came on for hearing the petitioner made seven requests for rulings which are set forth in the statement of the case.

The judge before whom the petition came for hearing refused all these requests and to that refusal the petitioner took an exception. Thereupon without hearing any evidence the judge ruled that as matter of law the allegations of the petition did not state a cause for vacating the decree and to that ruling the petitioner took an exception. An order was thereupon made for the entry of a decree dismissing the petition and to that order the petitioner took an exception.

Zeitlin v. Zeitlin, 202 Mass. 205, is decisive of all questions raised by these exceptions.

The petitioner seeks to escape from that decision on the ground that in that case there had been a second marriage (and a child born of that marriage) consequent on the decree which it was sought to vacate in that suit. The decree sought to be vacated in that case was a decree granting a divorce. The fact of the subsequent marriage and the birth of the child existed in that case and was stated in the opinion. But that was not the ground of the decision in that case. The decision was founded upon considerations of public policy apart from that fact and it is so stated there.

In the second place the petitioner has sought to bring this case within Edson v. Edson, 108 Mass. 590. But that case was considered in the opinion in Zeitlin v. Zeitlin, ubi supra, and distinguished on the ground that the false testimony in that case led the court to think that it had jurisdiction when in fact it had not.

Finally, the petitioner has asked us to reconsider the decision in Zeitlin v. Zeitlin. After a full consideration of the matter we are satisfied that Zeitlin v. Zeitlin, ubi supra, was well decided and that it should stand.

Exceptions overruled.