In re Edmund P. Dole for a Writ Prohibition Against George D. Gear

Decision Date21 January 1903
Citation14 Haw. 554
CourtHawaii Supreme Court



(Galbraith, J., dissenting in part.)

Syllabus by the Court

Equity may grant maintenance to a wife without special statutory authority and independently of a suit for divorce or separation, on the ground that the remedy at law through the pledging of the husband's credit for necessaries is inadequate.

This being deemed the better and more prevalent view at present in the United States, the court is not required to follow the old English rule to the contrary.

The old English rule need not be followed, for the reasons stated in the opinion, although (1) our statute (Civ. 1., § 1498) defining equity jurisdiction was copied from the statutes of Massachusetts where the old English rule is regarded as the correct rule, and (2) our statute (Id. § 1109) adopts the common law, as ascertained by English and American decisions, and (3) the legislature has made express provision for alimony in connection with divorce and separation (Id. Ch. 125).

Temporary maintenance may be granted in an equity suit for maintenance.

An order for such temporary maintenance is appealable.

The Circuit Judge is without jurisdiction to enforce such order by contempt proceedings pending an appeal.

Under a prayer for a writ of prohibition against further proceedings in a cause, a writ may be allowed against further proceedings in one branch of the cause and denied as to the remainder.

The rule that the writ will not be granted unless the question of jurisdiction has first been presented to the lower court, does not apply to summary proceedings of a quasi-criminal nature, as in cases of contempt.

Holmes & Stanley for petitioner.

Humphreys, Thompson & Watson for respondent, Eleanor G. Dole.



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. From that order the petitioner herein appealed to this court before the 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 the 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, & c.? (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 modern view and the old rule and the question as to what our duty is under such circumstances.

Both at common law and under our statute (Civ. L., § 1890) a husband is in general bound to support his wife in the style in which he supports himself. The remedy at law for a neglect of this duty is for the wife to purchase necessaries on her husband's credit and then for those who furnish such necessaries to sue the husband for their reasonable value. In order to recover they must prove not only the reasonable value of the goods but also that the goods were necessary and that the wife was justified in living apart from her husband. There is no remedy at law for enforcing this right of the wife to support directly through an action by herself against the husband, and her chances of obtaining such support depend upon the degree of success she might have in attempting to persuade third parties to furnish goods, in the face, perhaps, of a notice from the husband not to do so except at their peril, and in the face of the probability, if not certainty, of being able to collect, if at all, only through a law suit which might cost in attorney's fees more than the amount, if any, recovered, which might, besides the annoyance of litigation, involve the disagreeableness of engaging in family troubles, and which might, after all, prove unsuccessful because of inability to prove the requisite fault on the part of the husband and merit on the part of the wife and that the goods furnished were necessary and appropriate, and as many suits have to be brought as there are persons who furnish necessaries. This remedy can hardly be called adequate.

Accordingly many American courts take the view that equity may entertain an independent suit for alimony or maintenance- basing the jurisdiction mainly 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; Garland v. Garland, 50 Miss. 694;M'Farland v. M'Farland, 64 Miss. 499(1 So. 509);Edgerton v. Edgerton, 12 Mont. 122(29 Pac. 996);Earle v. Earle, 27 Neb. 227 (43 N. W. 118);Cochran v. Cochran, 42 Neb. 612 (60 N. W. 942);Spiller v. Spiller, 1 Hayw. (N. C.) 482;Hodges v. Hodges, 82 N. C. 122;Bueter v. Bueter, 1 S. D. 94; Prather v. Prather, 4 Desaus. (S. C.) 33; Rhame v. Rhame, 1 McCord's Ch. (S. C.) 147 (16 Am. Dec. 597);Smith v. Smith, 51 S. C. 379 (29 S. E. 227);Almond v. Almond, 4 Rand. (Va.) 662 (15 Am. Dec. 781). In North Dakota, also, this doctrine is strongly favored although the jurisdiction there is supported by statute. Bauer v. Bauer, 2 N. D. 108. This view is said to be held in the District of Columbia also (2 Am. & Eng. Enc. L. 2nd Ed. 95) whose reports are not in our library. Texas is often classed in this list on the strength of Walker v. Stringfellow, 30 Tex. 573, but that case does not go so far, and the contrary view receives support in Trevino v. Trevino, 63 Tex. 650. Ohio and Tennessee likewise are sometimes placed in this category, but apparently the decisions in those states were based on statutes. Cox v. Cox, 19 Oh. St. 502;Richardson v. Wilson, 8 Yerg. 67. This view is said to obtain in the British colonies of Jamaica and Barbadoes also, 1 Bish, M., D. & Sep. § 1399. In several of the states mentioned, e. g., California, Maryland and North Carolina, statutes in support of the jurisdiction have been enacted since the courts first held that such jurisdiction existed independently of statute.

The contrary view, denying jurisdiction, is supported by the English and many American cases. 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 also is often cited as holding this view, though we have not been able to verify this. The same is said of Pennsylvania also but the case cited, Rees v. Waters, 9 Watts 90, does not seem to be exactly in point, so far as we can judge from the digest, the decision not being at hand. In Louisiana, which is also cited the same way, the court seemed to regard the statute as prohibiting the jurisdiction. Carroll v. Carroll, 42 La. An. 1071. The Maine cases cited to the same effect seem to be explainable by reference to the statute. See Jones v. Jones, 18 Me. 308;Henderson v. Henderson, 64 Me. 419. In all, or nearly all, of the states cited above as supporting the view denying jurisdiction, as well as in many other states and Ontario and Manitoba, such jurisdiction seems now to be conferred by statute. See 2 Am. & Eng. Enc. L. 2nd Ed. 95; Stim. Am. St. L. § 6351; 2 Nelson, Div. & Sep. 962, 965; 1 Bish. M., D. & Sep. § 1399; and when so conferred is liberally construed. Harding v. Harding, 144 Ill. 588;Bucknam v. Bucknam, 176 Mass. 229; Wood v. Wood, 15 S. W. (Ark.) 459. Several of the decisions cited, e. g., all but one of those in Illinois supported the jurisdiction under statutory authority, the court stating however that the jurisdiction did not exist except by statute. Several denying the jurisdiction, e. g., in Massachusetts and New York, were influenced largely by local statutory provisions and historical considerations, and indeed are hardly in point, for they were not cases of this kind, and did not...

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