Home ALEXANDER J. ROMANOW vs. EVA ROMANOW (and a companion case).

335 Mass. 763

January 7, 1957

Decree affirmed. These are two appeals by a husband, the first from a decree dismissing his petition for an annulment of his marriage to his wife, and the second from a decree awarding her weekly support on her petition for separate support. Both cases were heard together. The only issue is the validity of the marriage. The wife, who had been previously married to one Freedman, filed a libel against the latter on September 9, 1952, in the Probate Court for Suffolk County. This libel remained inactive until it was dismissed on July 7, 1955, in accordance with Rule 43 of the Probate Courts (1934). The wife filed a second libel against Freedman in said court on December 11, 1952, and was granted a decree nisi on February 3, 1953. This second libel made no mention of the pendency of the first libel as provided for by Rule 35 of the Probate Courts (1934). It is the contention of the husband that the decree of February 3, 1953, thereby was void and his subsequent marriage to her invalid. The judge who heard the instant petitions made a report of the material facts. There is no finding that the wife practised any imposition on the court in securing her divorce on February 3, 1953. Besides, it appears from his report that, in hearing the instant petition for annulment and the nonsupport petition, he knew that the second libel did not mention the pendency of the first libel. Her failure to mention the first libel was not a jurisdictional defect and at most it was a procedural defect not furnishing adequate basis to maintain a collateral attack upon the decree of February 3, 1953. Eldridge v. Eldridge, 278 Mass. 309 . Old Colony Trust Co. v. Porter, 324 Mass. 581 . Kalmus v. Kalmus, 330 Mass. 41 .

Home GARDNER SAVING BANK vs. THE ARTS FOUNDATION OF BOSTON, INC. & others.

335 Mass. 763

January 7, 1957

Decree affirmed with costs of the appeal. This is an appeal from a final decree under the Soldiers' and Sailors' Civil Relief Act of 1940, U. S. C. (1952 ed.) Title 50, Appendix, Section 532, permitting the plaintiff to enter and sell under a mortgage given to it by the defendant and upon which there was a balance due of $28,500. The note called for the payments of monthly instalments. It also contained an acceleration clause making the unpaid principal due upon the failure to pay a monthly instalment within thirty days of its due date. After a number of such failures the bank has refused to accept subsequent instalments. There was no error. American House Hotel Co. v. Hemenway, 237 Mass. 180 . Greene v. Richards, 244 Mass. 495 . Charlestown Five Cents Savings Bank v. Zeff, 275 Mass. 408 , 411. After the close of the evidence, by an interlocutory decree the bill of complaint was taken "pro confesso" against Alfred H. Avery, as trustee under an indenture and deed of trust, with the consent of said Avery. He did not appeal from the interlocutory decree but he has joined in the appeal from the final decree. Avery became liable as guarantor on the mortgage note on the facts established as true which were properly pleaded and which required the decree

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which was entered against him. Matek v. Matek, 318 Mass. 677 . Shoolman v. Wales Manuf. Co. 331 Mass. 211 .