10 Haw. 562 | Haw. | 1896
OPINION OP THE COURT BY
The former decision, ante, p. 117, in this case was filed August 15, 1895. On October 4, 1895, new counsel for the defendant filed a motion for a rehearing, based on a number of grounds therein set forth. On March 6, 1896, he filed additional grounds. Opposing counsel objected to the court’s entertaining the motion on the grounds of defendant’s laches in filing the same and its acquiescence in the judgment. Affidavits were filed on both sides. The court thought it best to hear argument upon the motion itself as well as upon the preliminary questions of laches and acquiescence, and now, in view of all the circumstances and of our conclusion, we believe it will be more satisfactory to consider the motion entirely upon its merits, without going into the questions of laches and acquiescence at all.
The points relied upon by the defendant’s counsel in his able and elaborate brief will be considered in their order. We regretted much at the first hearing that we were not thus favored with full argument on behalf of the defendant, except upon one of the many interesting questions involved in the case and at that time argued by plaintiff’s counsel or suggested by the court. The decision was rendered at an early date, as requested on behalf of the defendant, in such light as the court then had, and yet in the light of the full argument now presented, we do not find sufficient ground for allowing a rehearing. We come to this conclusion fully realizing both that if a rehearing should be granted, it would by no means imply that the former decision was erroneous, and that the merits of the case are not involved in the disposal of the motion, al
The first point relied on is, that the court manifestly erred in construing the policy as a Hawaiian contract, whereas it appears upon its face to be a New York contract. The case was submitted upon an agreed statement of facts in which it was expressly agreed that the “contract of insurance was made and entered into in the Hawaiian' Islands.” This is all that was assumed in the decision, namely, in the words “the contract having been entered into in these islands.” But it is argued that the agreed statement cannot be construed as an admission that the policy was a Hawaiian contract. If so, the decision also cannot be construed as holding that, for its language is that of the agreed statement.
It is further argued that, if the agreed statement does contain such admission, then counsel, who signed it, exceeded his authority in so doing and the defendant is not bound thereby, If the statement did contain such admission, the court would have been perfectly justified in acting upon it. "When a case is submitted to the court upon an agreed statement of facts signed by responsible counsel, it certainly would not be the duty of the court, it would not even be proper, to assume that counsel was acting without authority and then decide the case upon facts directly contrary to those upon which the case was submitted, and especially where as in this case the admission, if made, might under certain circumstances be in accordance with the facts notwithstanding the particular language of the policy or other documents before the court. But it is unnecessary to decide whether the agreed statement did contain such admission, or, if it did, whether an attorney at law could as such properly make such an admission, or, if not, whether such admission, if made, was in fact authorized or acquiesced in by the defendant itself. Eor the court did not as matter of fact construe the policy as a Hawaiian contract. It construed it precisely as requested by defendant’s counsel (holding that the word “wife” in the policy was a word of description, not
It is further argued, that, if the mere fact that the policy is a New York contract is not sufficient to require the New York law to govern in determining the question of assignment by operation of law, as distinguished from the question of construction, yet it is expressly provided in the policy that the New York law should govern and it was competent for the parties to so agree. Let us assume that such an agreement, if made, would have been valid. The provision referred to is not in the policy proper, a copy of which was before the court, but in the application, which, although in terms made a part of the policy, was not before the court and has not to this day been seen by the court. This provision is stated in the brief as follows: “This application is made to the Mutual Life Insurance Co. of New York, subject to the Charter of the Company and the laws of the State of New York.” An application which the parties themselves did not make a part of the case and which the court had never had an opportunity of seeing, could not be considered. Even if it had been a part of the case, the court would still have been in the dark as to the provisions of “the Charter of the Company and the laws of the State of New York,” no proof of which was made. In the present
Tbe company, not having brought tbe widow into court by interpleader, is in tbe unfortunate position of being subjected
The next point relied on is that, if Hawaiian law, that is, the law of the place of domicil and divorce, is to govern, that law did not pass the policy in question to the husband. The •statute (Civ. Code, Sec. 1331) provided that “When a divorce is decreed for the adultery * * * of the wife, the husband ■shall hold her personal estate forever * * The argument is that, as the court has held that the former statute (Civ. Code, Sec. 1286) upon the rights of husband and wife, which made the husband “the virtual owner” of the “movable property” of his wife, was substantially an enactment of the common law upon the subject and therefore did not pass the wife’s choses in action to the husband until reduced to possession by him, so it must by analogy hold that under the statute now in question the wife’s choses in action did not pass to the husband under the description of “personal estate” until reduced to possession and that as the husband did not in this case reduce the policy in question to possession during his lifetime the wife was entitled to it. The question whether the policy was “personal estate” within the meaning of the statute was argued by counsel for the plaintiff at the former hearing, and was considered and decided by the court, though this particular ■phase of the argument was not gone into. A rehearing should not be granted merely to allow new counsel for the defendant to present argument upon a question raised at the first hearing, but which former counsel for the defendant then chose not to •■argue, at least where, as we believe to be the case here, a rehearing would probably not result in a different decision. For, even
The next point relied on is that the statute in question (Section 1331) was repealed by implication by the Married Woman’s Act of 1888. This point was considered by the court before rendering its decision, and, if we remember rightly, was also suggested to counsel at the. hearing, but was not touched upon In the decision because counsel had not cared to argue it. Very probably the legislature which passed the Act of 1888 emancipating married women from the harsh provisions of the common law would have also repealed the section in question, if it had been brought to its notice. But this is only a matter of probability as to what would have been done. It was not in fact done. The section is not inconsistent with that Act. It may he regarded as a special provision for a penalty or forfeiture in case of a divorce for the offense of adultery. We are glad to note that the section has since been repealed, — by an Act introduced by Senator Brown who as substitute judge took ■part in the former decision and now takes part in this.
The point made in the brief that Seetion 1331 is unconstitutional was not made a ground in the motion for rehearing. We need only add that we fail to see the force of the learned argument upon this point.
The next point is, that Section 1331 did not apply to the property in question because at the time of the divorce neither the wife nor the policy were in this country or within the jurisdiction of the court — the wife because she had gone to California, the policy because, although it remained here in the possession of the husband, being personal property it followed its owner, the wife, in contemplation of law. "We presume that by this is meant, not that personal property follows its owner wherever the latter may happen to go temporarily, but that it is governed by the law of the owner’s domicil, or residence animo manendi. Row there was no proof whatever that the wife in this case intended to change her domicil, which had previously been here, and which in the absence of proof to the contrary would, at least after so short an absence, be presumed to continue here, to say nothing of the rule that the wife’s 'domicil is that of her husband except under certain special circumstances. But, however that may be, both parties were undoubtedly domiciled here when the divorce proceedings were commenced and when the court acquired jurisdiction over them,, and that was sufficient so far as the question of domicil was concerned. The court having acquired jurisdiction under these' circumstances the incidents of the divorce would follow according to the law of the place of divorce.
.Finally, it is argued that the divorce had not become absolute because the exceptions taken in the divorce proceedings had not been disposed of. (Comp. L. p. 437.) The construction of this statute was argued and decided at the first hearing and we are practically asked to go over the same ground again. The only criticism made upon the former decision of this question is-based upon a misconstruction of that decision.
The motion for a rehearing is denied.