288 Mass. 56

October 2, 1934 - October 3, 1934

Middlesex County

Present: Rugg, C.J., Crosby, Pierce, Field, & Donahue, JJ.

Marriage and Divorce, Desertion, Dismissal of libel without prejudice. Evidence, Presumptions and burden of proof.

Where a libel for divorce on the ground of cruel and abusive treatment was filed in January, 1930, and was "dismissed without prejudice" in February, 1933, it was proper as a matter of law to dismiss another libel, grounded on desertion, filed by the same libellant in October, 1933.

LIBEL for divorce, filed in the Probate Court for the county of Middlesex on October 19, 1933.

By order of Leggat, J., a decree dismissing the libel as a matter of law was entered. The libellant appealed.

The case was submitted on briefs.

M. Kabatznick & A. M. Stern, for the libellant.

R. P. Boruchoff, for the libellee.

BY THE COURT. This libel for divorce on the ground of desertion was filed October 19, 1933. In January, 1930, a libel for divorce on the ground of cruel and abusive treatment was filed by the libellant against the libellee, which on February 27, 1933, was "dismissed without prejudice." A request by the libellant for a ruling that he was entitled to proceed and be heard was denied and the libel was dismissed as matter of law.

The ruling was right. Najjar v. Najjar, 227 Mass. 450. The dismissal of the earlier libel without prejudice does not extinguish the force of its allegations as binding on the libellant. That libel raised a conclusive presumption of fact that the desertion of his wife after that time was with his consent.

Order dismissing libel affirmed.