Lead Opinion
The respondent, Eleanor G. Dole, by her next friend, brought a bill in equity for maintenance against her husband, the petitioner Edmund P..Dole, before the other respondent, the Circuit Judge, and incidentally prayed for costs, counsel fee and temporary maintenance. After a hearing on a demurrer to the bill for want of jurisdiction and on an order to show cause why temporary maintenance, &c., should not be granted, the Judge, held that equity had jurisdiction and ordered the petitioner herein to pay certain sums for costs of court, counsel fees and temporary maintenance within a specified time*. Erom that order the petitioner herein appealed to this court before thei expiration of the specified time and did not make the prescribed payments, and proceedings for contempt were begun to* compel such payments, whereupon the petitioner sued out this writ of prohibition to restrain the respondents from proceeding further in tlio suit in equity — on the* ground that equity is without jurisdiction of such a case. The Circuit Judge filed a statement to the effect that he had no answer to make to the writ. The other respondent demurred generally.
Three questions were, raised and argued: (1) Has equity jurisdiction to grant permanent alimony or maintenance independently of proceedings for divorce or separation? (2) If so, has it jurisdiction to grant alimony pendente lite, &e.? (3) If so, is an order for such temporary alimony, &c., appealable?
The first of these questions, which'is the main question, is one of considerable difficulty — not-so much because of doubt as to what is or is generally considered the better doctrine at the present time or as to what is generally agreed to* -have been the former rule in England, whence we derive our system of equity for the most part, as because of the conflict between the modem view' and the old rule and the question as to what our duty is under such circumstances.
Accordingly many American courts take the view that equity may entertain an independent suit for alimony or maintenance— basing the jurisdiction maiply on the grounds of inadequacy of the remedy at law and the prevention of a multiplicity of suits. See Pearce v. Pearce, 31 So. (Ala.) 85; Galland v. Galland, 38 Cal. 265; Hardy v. Hardy, 97 Cal. 125; Daniels v. Daniels, 9 Col. 133: Hanscom v. Hanscom, 6 Col. App. 97; Dye v. Dye, 9 Col. App. 320; Graves v. Graves, 36 Ia. 310; Farber v. Farber, 64 Ia. 362; Simpson v Simpson, 91 Ia. 235; Butler v. Butler, 4 Litt. (Ky.) 202; Steele v. Steele, 29 S. W. (Ky.) 17; Helms v. Franciscus, 2 Bland’s Ch. (Md.) 544 (20 Am. Dec. 402); Barber v. Barber, 21 How. U. S. (on Md. law) 582;
The contrary view, denying jurisdiction, is supported by the English and many American eases. See Ball v. Montgomery, 2 Ves. Jr. 190; Wood v. Wood, 15 S. W. (Ark.) 459; Ross v. Ross, 69 Ill. 569; Trotter v. Trotter, 77 Ill. 510; Johnson v. Johnson, 125 Ill. 510; Fischli v. Fischli, 1 Blf. (Ind.) 360; Chapman v. Chapman, 13 Ind. 397; Moon v. Baum, 58 Ind. 194; Shannon v. Shannon, 2 Gray (Mass.) 285; Adams v. Adams, 100 Mass. 365; Peltier v. Peltier, Harr. Ch. (Mich.) 19; Perkins v. Perkins, 16 Mich. 162; Doyle v. Doyle, 26 Mo. 545; Parsons v. Parsons, 9 N. H. 309; Lynde v. Lynde, 54 N. J. Eq. 476; Ramsden v. Ramsden, 91 N. Y. 281. Georgia
AVe need not restate all the arguments pro and con. The weight of authority at the present time as well as principle favoring, in our opinion, the jurisdiction, the question is whether we are bound to follow the old English rale. There are no former Hawaiian decisions on the question, so far as we are aware, with the exception of a recent one by a Circuit Judge supporting the jurisdiction, which was not appealed from. The question of our duty must therefore depend largely upon the construction of our statutes. There are three statutes principally to be considered on this point.
First, there is the Act of 1876 defining the jurisdiction in equity. Civ. L., §§ 1497-1501. Sec. 1498 provides that certain courts “may hear and determine in equity, all cases hereinafter mentioned, when the parties have not a plain, adequate and complete remedy at the common law, that is) to say: * * * (enumerating many classes of cases) and shall have full equity jurisdiction, according to the usage and practice of courts of equity in all other cases where there is not a plain, adequate and complete remedy at laiw.” This statute would at first impression seem clearly to confer jurisdiction in this case, if we assume that the remedy at law is inadequate. And even if we should determine the question of the adequacy of the remedy at law by reference to' the weight of judicial authority and “the usage and pracr tice of courts of equity” rather than by reference to the plain fact, it is clear that we should have to come to the same conclusion in view of all the decisions at the present time. There
But this statute was copied from a like statute in Massachusetts (Mass. Gen. St., Ch. 113) and, assuming as is generally done, that the jurisdiction is denied in that state, (there is no doubt that it would be if it has not already been denied) in the absence of an express statute conferring it, the question suggests itself, whether we are not bound by the rule that when a statute is adopted from another slate, the construction placed upon, it by the courts of that state prior to such adoption is ‘also; adopted. And yet this rule, does not apply here, first, because the Massachusetts cases above cited as denying jurisdiction, aside from the fact that they are not strictly in point on the question of jurisdiction in this class of cases, did not turn on the construction of the equity statute but were based chiefly on other statutory and historical grounds, and, secondly, because, in view of similar grounds, which do not apply here, the equity statute is construed in that state as an additional grant of equity jurisdiction to the courts of common law, and the exception of cases in Avhich there is a “plain, adequate and complete] remedy at the common laAv” is construed as referring to remédies at la|w as they exist under the statutes as well as to remedies as they exist at common law strictly speaking, with the result that, contrary to the general rule, equity is held not to have jurisdiction, even though it originally had it in England, if an adequate remedy is provided by statute (Jones v. Newhall, 115 Mass. 244), while the statute has already been construed differently here — as being a declaration of previously existing general equity jurisdiction, which is not ousted by the fact that other statutory as distinguished from common law remedies exist. Haw. Com. & Sug. Co. v. Waikapu Sug. Co., 8 Haw. 449; Wailuku Sug. Co. v. Cornwell, 10 Haw. 476.
Another statute to be construed is that of 1892 (Civ. L., § 1109) by which “the common law of England, as ascertained by English and American decisions, is hereby declared to be the
It is contended, however, that thj> statute has no application because this is a case in equity ana not at common law. We need not decide this question, for, in view o>f our conclusion, we may assume for the purposes of this case that equity is included in the common law within the meaning of this statute.
One of the exceptions named in the statute, is that the common law shall not apply when it is “otherwise expressly provided by the Hawaiian * * * laws.” We have just held that the statute that confers jurisdiction “according to the usage and practice of courts of equity” does not require such usage and practice to be ascertained by reference to decisions’ at any particular period of time in the past or in England to the exclusion of the United States. Is not this, therefore, a case in which it is “otherwise expressly provided by Hawaiian laws” within the meaning of the exception named in the statute adopting the common law? There is much reason to believe that it is. But, asr suming that it is not, still we are not bound by the old English, rule for the following reasons.
The common law consists of principles and not of set rules. It therefore admits of different applications under different conditions. Moreover, by the terms of our statute it is to be ascertained by American as well as by English decisions. In Morgan v. King, 30 Barb. 9, the court, in construing a somewhat similar statute, said (at p. 13): “The adoption of the common law, in the most general terms, by the government of any country, would not necessarily require or admit of an unqualified application of all its rules, without regard to local circumstances, however well settled and generally received those rules might be. Its rules are modified upon its own principles, not, in violation of them” and (at p. 14) “when it is said that we have in this country adopted the common law of England, it is not meant that we have adopted any mere formal rules, or any written code, or tire mere verbiage in which the common law is expressed. It is aptly termed the unwritten law of England; and we have adopted it as a, constantly improving science, rather than as an art; as a system of legal logic, rather than as- a code
The common law has been adopted by constitutional or statutory provision or judicial decision in nearly all of the United States. It had been expressly adopted by constitution or statute in many of the states in which the courts hold that equity has
The third statute to be considered is that in reference to divorce and separation which provides for alimony also. Oiv. L., Ch. 125. Are these provisions exclusive? So far as the statute relating to divorce is concerned there is no difficulty. Similar statutes are found in all or nearly all of the states that hold that equity has jurisdiction and are expressly held in many of them not to prevent such jurisdiction. To bold that a statute of divorce, even though it provides for alimony incidentally, prevents the equity jurisdiction, would be to encourage applications for divorce by wives who need assistance, to open the way for husbands, wbo desire divorces but have no grounds for obtaining them, to force their wives to. apply for them; and at the same time to deny vives adequate remedies, because they would have to wait under most statutes some, time before tbey could apply for or obtain a divorce and their husbands might meanwhile by disposing of their property put it out of their wives’ power to obtain alimony, and the remedy through divorce would often be altogether beyond tbe remedy desired or needed.
The statute of separation offers greater difficulty. For that seems to cover almost the same ground that equity is held to cover in this respect, although even the relief by separation, by determining the status, might often exceed the relief desired.
The separation law cannot he regarded as preventing the equity jurisdiction merely on the ground that it provides an adequate remedy at law, for it is a general principle, often, followed by this court, that if equity jurisdiction exists in the absence of a statutory remedy at law, it is not taken away -by the grant of such a remedy. The jurisdiction in equity does not cease and revive from time to time with the enactment and repeal of statutes which confer a remedy at law. Nor does the separation statute necessarily prevent the equity jurisdiction under the rule, easpressio mius est ewclusio alterius, that is, on the ground that the statute relating to. the subject of divorce, and separation, which provides for alimony also, was intended to be complete and exhaustive on those subjects; for, although there may be much foreei in this argument, still in that statute the
Our conclusion on the first question is therefore that equity may in a proper case grant maintenance- independently of express statutory authority and that there is nothing in our statutes to the contrary.
The second question presented in this case is whether, assuming that the jurisdiction exists to grant permanent alimony, temporary alimony, &c., also may be granted. On principle this question must be answered in the affirmative and the authorities appear to be practically unanimous to the- same effect. This is conceded by even those writers and courts which hold that equity has no jurisdiction to grant permanent alimony except under statutory authority. 1 Bish. M., D. & Sep., § 1411; Harding v. Harding, 144 Ill. 588; Vreeland v. Vreeland, 18 N. J. Eq. 43.
The third question presented is whether an order for alimony pendente lite is appealable. This depends upon whether the order is final or interlocutory within the- meaning of the law of appeals, and, if final, whether there is anything in the nature of the order that requires it to be excepted from the general rule.
It does not seem to be disputed that, if the order for temporary alimony is appealable, prohibition lies to prevent its enforcement by contempt proceedings pending the appeal which is alleged to have been taken. We presume also that., although the prayer is for a writ against further proceedings in the cause, that is, the whole cause, we may issue it to the extent required thougn it be to only one branch of the cause. State v. White, 21 So. (Fla.) 160. Nor has any question been raised as to the propriety of issuing, the writ against the contempt proceedings, although as a rule prohibition is not granted untl the question of jurisdiction has been raised without sue
Accordingly, the writ will be made absolute as to further proceedings in the contempt matter but dissolved as to further prcoceedings in the main cause.
Concurrence Opinion
CONCURRING OPINION OF,
I concur, save only as to the reason for holding that §1109 of the Civil Laws does not preclude the adoption in this Territory of the view that equity has jurisdiction of suits for separate maintenance. As to' the correctness of the reasoning of the Chief Justice on this point I express no opinion.
The Act of 1878 declares that our courts “shall have full. equity jurisdiction according to the usage and practice of courts of equity in all other cases where there is not a plain, adequate and complete remedy at law.” As stated in the opinion of the Chief Justice, there is nothing in that statute that requires the “usage and practice of courts of equity” to be ascertained by reference to the authorities in England to the exclusion of those in the United States, in other words, nothing limiting the “courts of equity,” whose practice is to be ascertained, to those of England to the exclusion of those of the United States. On the contrary, the correct construction of that statute is, and the intention of the legislature that enacted it was, in my opinion, that the courts whose power was being
Concurrence Opinion
OPINION OP
I concur with the conclusion of the Chief Justice in so far as it is held that equity had jurisdiction of the suit and that the court had the authority to- make the order for alimony pedente lite but cannot agree that that order is appealable or that the writ of prohibition in this case should be made absolute to any extent.
It is true that the: order granting the allowance to the wife is made under the general equity powers of the court but the appeal, if any, is taken under our statute. Sec. 1433 C. L. as amended by Act 40, Session Laws, 1898, reads in part: “Appeals shall be allowed from all decisions, judgments’, orders or decrees of Circuit Judges in Chambers, to the Supreme Court, * * * whenever the party appealing shall file notice of his appeal within five days, and shall pay the costs accrued and deposit a sufficient bond in the sum of fifty dollars conditioned for the payment of the coste further to' accrue in case he is defeated in the appelate court, or money to the same amount, within ten days after the filing of the decision,
The above statute on appeals has been construed to- permit appeals only from “final” decisions, judgments, orders or decrees. Barthrop v. Kona Coffee Co., 10 Haw. 398. In that case the court held that an order overruling a demurrer to- a bill in equity was interlocutory and not a “final” order or decision and was not appealable.
In discussing the question, Mr. Justice Frear, speaking' for the court, said: “If appeals were allowed from all such rulings it would be in the power of a defendant, even in a very clear case against him, to> keep the case oscillating between the original and appellate courts almost indefinitely, to- the great expense and annoyance and perhaps even practical denial of justice to the plaintiff, to say nothing of the annoyance to the courts and the occupation of their time with trivial matters. * * * * Our statute is such that we cannot discriminate between interlocutory decisions so as to allow appeals on important occasions and not on other occasions,” p-. 401.
The force of this decision is recognized by the majority but it is sought to avoid it by holding that the order made allowing temporary alimony and counsel fees pedente lite is a final order on the ground that it finally disposes of the matter to which it refers. Is it any more final than the order overruling a demurrer or does it any more finally and permanently dispose of the matter raised than the decision on a demurrer? Clearly not.
An interlocutory order is defined “to be one made between the commencement and end of a suit or action which decides some point or matter, which, however, is not a final decision of the matter in issue,” Bouvier. The “matter in issue” in this
The cases cited in the majority opinion to sustain the conclusion that the order is final and appealable base such holding principally on the grounds that the judgment is a money judgement and that to deny an appeal would be to- authorize the taking of the husband’s property without the right of review and that “property rights” are of such a sacred nature that property must not be passed from the husband to the wife at the discretion of one Judge however great or good he may be. Blake v. Blake, 80 Ill. 523; McKennon v. McKennon, 10 Okla. 400. These cases overlook the very important point that the statute, and the common law in the absence of statute, imposes the duty on the husband, by reason of the marriage relation, when he has turned his wife adrift and without fault on her part compels her to live separate and apart from him, to supply her with necessaries, and if he fails to do this and she is compelled to sue for them in the courts then he is liable for her reasonable counsel fees. These are “legal rights” conferred on the wronged wife by law. Temporary support is allowable to meet the “immediate necessities of the wife” (Call v. Call, 65 Me. 407). It seems to me that these rights given the wife are equally sacred and entitled to the protection of the courts with the property rights of the husband and should not be permitted to be frittered away by appeal. The Circuit Judge in making the order merely announced the judgment of the law on the facts.
It is also claimed that an appeal ought to' be allowed for the reason that the husband could not “get the money back” if the order should be found to have been wrongfully made. Where,
If our statute on appeals was similar to* that in California, Montana, Oklahoma and possibly Colorado and Illinois in the requirement that the husband should file a supercedas bond conditioned to pay the allowance if affirmed by appellate court, the cases cited from those jurisdictions in support of the conclusion of the majority would have much greater force. The single reason that the husband under our statute can appeal, if at all, without paying or securing the amount of the allowance even if ap>proved by appellate court ought to be absolutely controlling and impel tlie court to deny an appeal where one is not clearly allowed by statute. I'he denying an appeal in this ease- does not withhold from the husband a “legal right” for the reason that he has no right to an appeal if none is given by statute, while the wife under the facts alleged in the bill and admitted by the demurrer has a “legal right” to expenses and support given by the statute which may be denied her altogether by allowing the appeal. To “make law” by construing the statute to allow an appeal in this case is to place it in the power of the husband, as has been so well said, “to keep tbe case oscillating between tbe original and appellate courts almost indefinitely, to the great expense and annoyance and perhaps even practical denial of justice to the plaintiff” and will also permit a husband who wants to void
It seems clear to me that the court ought not to make the writ absolute in any particular. To do so it is necessary to go altogether beyond the prayer of the petition for the writ. The prayer reads “’Wherefore your petitioner prays that a. writ of prohibition may he issued ont of this Honorable Court addressed to the said Honorable George D. Gear, Second Judge of the Circuit Court of the Eirst Circuit, ordering and forbidding him to take cognizance of the said cause, and to the said Eleanor G. Dole forbidding her and her attorneys or any one on her her half from prosecuting the said cause before the said Honorable George D. Gear, Second Judge as aforesaid, or any Judge of said Court, until the further order of this Court.” The prayer only asks for the writ against proceeding in “’said cause.” “Said cause” is the suit fox maintenance, the principal cause of action, not the incidental order allowing temporary alimony and counsel fees. The court finds that the petitioner is not entitled to the writ in “said cause” but gives so:nething not asked for by making the wiit absolute as to an incidental matter.
There is no doubt that the coitTt below was proceeding in the contempt matter on the theory that no appeal could he laken from the order allowing temporary alimony and I submit that under the law it was justified in so proceeding. Since the majority has declared that it was proceeding on a wrong theory and that an appeal lies from the' order there is no suggestion that the Circuit Judge will refuse to acknowledge and follow the law as so declared and that it would hold a return filed by the respondent that he had perfected an appeal from said order as a sufficient showing for failure to comply therewith and order his discharge.
Making the writ absolute in any particular is entirely uncalled
The order ought to be discharged and the writ dismissed.