Kuala v. Kuapahi

Decision Date19 November 1903
Citation15 Haw. 300
PartiesKUALA v. KUAPAHI.
CourtHawaii Supreme Court

OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT JUDGE, FIFTH CIRCUIT.

Syllabus by the Court

In an equity suit to quiet title, in which the plaintiff relies on adverse possession, an objection that the title had not previously been determined at law, comes too late when made for the first time in this court and this court should not of its own motion dismiss the bill because of such alleged want of equity.

Robertson & Wilder and M. F. Prosser for plaintiff.

S. K. Kaeo and A. G. Correa for defendant.

FREAR, C.J., GALBRAITH AND PERRY, JJ.

OPINION OF THE COURT BY FREAR, C.J.

This is a bill in equity to quiet title. The plaintiff admits that the defendant has the record or paper title, but contends that she has acquired a title by adverse possession. The entire controversy, as shown by the pleadings, the evidence, the opinion of the Circuit Judge and the arguments of counsel, turns on the question of adverse possession. The plaintiff's right or title has not been adjudicated in a court of law. If this is a proper case for equity, then any one claiming by adverse possession may have the question tried and determined in a suit in equity, however plain, complete and adequate the remedy at law may be, and may then also deprive the defendant of a trial by jury. It is clear that this is not a proper case for equity. But has not the question as to whether equity should act in this case been waived by the failure of counsel to raise it, and should this court notice it of its own motion? At the request of the court, counsel have filed supplementary briefs on these points. The defendant, it is true, suggested a want of jurisdiction in his answer and in his notice of appeal, but it does not appear that these suggestions were based on this ground and apparently they were abandoned.

It seems to be pretty well settled that, as it is variously expressed, although neither consent nor negligence will confer jurisdiction in equity where none really exists, yet, when the case is not wholly foreign to equity jurisdiction, when it is not on its face such that equity could have no jurisdiction over it, as, for example, an action to recover damages for an assault, or for a libel or slander, when the defect is a want of equity and not a want of power, when the objection is merely that a plain, adequate and complete remedy at law exists or that equity is without jurisdiction in the particular case merely for some special reason or the absence of some particular element, when equity is competent to grant the relief sought and has jurisdiction of the subject matter, when the case is not without traces of equity jurisdiction, the question of the alleged want of jurisdiction may be waived and will be deemed to have been waived if not raised until the case comes to the appellate court. The latest case by the highest court in the land holding this way, that has come to our notice, is Detroit v. Detroit Cit. St. R. Co., 184 U. S. 368, 381. See also Reynes v. Dumont, 130 U. S. 354, 395;Kilbourn v. Sunderland, 130 U. S. 505, 514;Brown v. Lake Sup. I. Co., 134 U. S. 530;Tyler v. Savage, 143 U. S. 79, 97;In re Tyler, 149 U. S. 164, 181;Hollins v. Brierfield C. & I. Co., 150 U. S. 371, 381;Insley v. U. S., 150 U. S. 512, 515;Pollock v. Farm L. & T. Co., 157 U. S. 429, 554;Foltz v. St. L. & S. F. R. Co., 60 Fed. 316, 322;Reynolds v. Watkins, 60 Fed. 824, 825; Un. P. R. Co. v. Harris, 63 Fed. 800, 803;Elder v. M'Claskey, 70 Fed. 529, 555; Guar. Co. v. Mec. S. B. & T. Co., 80 Fed. 766, 772;Waterloo M. Co. v. Doe, 82 Fed. 45, 49;Schoolfield v. Rhodes, 82 Fed. 153, 157;N. Y. & T. L. Co. v. Gulf W. T. & P. R. Co., 100 Fed. 830; C. C. C & St. L. R. Co. v. Munsell, 192 Ill. 430;Larch M. I. Co. v. Garbade, 41 Or. 123;Haskell v. Merrill, 179 Mass. 120;De Long v. Olsen, 63 Neb. 327.

The difficulty lies chiefly in the application of the rule. In Lewis v. Cocks, 23 Wall. 466, 470, which was practically an ejectment bill to recover the possession of land, the objection was not raised by demurrer, plea or answer, nor was it suggested by counsel, and yet the appellate court noticed it sua sponte and reversed the decree below and directed the dismissal of the bill. That case has frequently been cited with approval in later decisions of the same court cited below. See, to the same effect, Williams v. Fowler, 201 Pa. St. 336; also Allen v. Pullman's Palace...

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