23 Haw. 646 | Haw. | 1917
OPINION OP THE COURT BY
The plaintiffs are the heirs at law of Susan Bertelmann Kahilina (hereinafter for convenience called Susan) who died September 2, 1915. Susan was formerly the wife of Isaac H. Kahilina (hereinafter for convenience called Isaac) who died November 18, 1902, leaving certain lands from which the defendants, as heirs, have been collecting rents since his death. Plaintiffs claim to have inherited from their said mother an interest in said lands which she, plaintiffs contend, inherited from Isaac as his lawful widow, and demand of defendants an accounting for such rents, to procure which the bill of complaint herein was filed. To the bill of complaint the defendants filed a plea in bar in which they allege that Susan was not the widow of said Isaac at his death as alleged in the complaint; that said Susan filed in the circuit court of the first judicial circuit of the Territory of Hawaii on the 14th day of February, 1902, her amended libel for divorce against said Isaac praying that the bonds of matrimony then existing between them be dissolved; that thereafter and on February 24, 1902, the said case was duly heard; and that on February 25, 1902, the said court did make and file its decree adjudging and decreeing that the bonds of matrimony theretofore existing between the said Susan and the said Isaac be dissolved and annulled and held for naught as shown by copy of the record, pleadings and decree in said divorce suit referred to and made a part of the plea in bar. To the plea in bar the plaintiffs filed a traverse in which it is admitted that the said libel for divorce was filed and the decree divorcing the parties was made and filed, but affirmatively alleging that the said Isaac sued out a writ of error on the 4th day of
Trom the facts, briefly outlined above, it is contended by the plaintiffs, appellants, that by reason of the suing out of the writ of error (and the confession of error filed by Susan) the decree of divorce was of no effect at the time of the death of Isaac and that Susan was then his wife and as such inherited an interest in his said lands which have descended to the plaintiffs as heirs at law of Susan. Unless this contention is correct the decree of the circuit judge
Under Civil Laws of Hawaii 1897, Secs. 1445, 1446, 1456, a writ of error could be had for error of law or fact appearing on the record or for any error that might be assigned as error at common law; the record to be deemed to include all of the pleadings, motions, notes or bills of exceptions, exhibits, clerk’s or magistrate’s notes of proceedings, and, if desired by the plaintiff in error, a transcript of the evidence; the supreme court had power to enter such judgment in the case as in their opinion the facts and law warranted. The provisions of the Civil Laws 1897 are limited and restricted by those of Sec. 1447 wherein it is provided that “There shall be no reversal on error of any finding depending on the credibility of witnesses or the weight of the evidence.” The power of this court to reverse the decree in an equity suit on the facts is broader where the case comes here on appeal than when it comes up on writ of error. Plaintiffs contend that as the supreme court had power to make such decree as the law and facts warranted the suing out of the writ of error practically amounted to granting a new trial and that there was no decree of divorce at the time of the death of Isaac. We are cited to the case of Rishel v. Rishel, 24 Pa. S. C. 303, and to the case of McGrail v. McGrail, 51 N. J. Eq. 537, as authority to the effect that an appellate court should carefully scrutinize the evidence in a divorce suit and either reverse, affirm or modify the decree of divorce in accord with the law and facts of the case. The rules announced in these decisions are correct. We are unable to agree to the proposition contended for by the plaintiffs and apparently supported by the decision in Rosenfeld v. Stix, 67 Mo. Ap. 582 (and two other Missouri Appeal decisions therein cited), that because of the writ of error, and the death of Isaac during its pendency, that Susan was his wife at the time of his death. We have no
The plea in bar was properly sustained and the decree dismissing the bill of complaint is affirmed.