Sakakihara v. Sakakihara

• Decision Date: 15 June 1921
• Docket Number: No. 1325.,1325.
• Citation: 26 Haw. 89
• Parties: SHIZUE AOKI SAKAKIHARA, BY HER FATHER, BUNZA AOKI v. THOMAS T. SAKAKIHARA.
• Court: Hawaii Supreme Court

26 Haw. 89

SHIZUE AOKI SAKAKIHARA, BY HER FATHER, BUNZA AOKI

v.THOMAS T. SAKAKIHARA.

No. 1325.

Supreme Court of the Territory of Hawai‘i.

Submitted June 6, 1921.

Decided June 15, 1921.

APPEAL FROM CIRCUIT JUDGE FOURTH CIRCUIT. HON. J. W. THOMPSON, JUDGE.

Syllabus by the Court

Equity has jurisdiction to annul a marriage when the suit is based upon a recognized ground of equity jurisdiction and the inclusion of the same ground as the basis of a statutory action at law will not oust equity of its jurisdiction.

Equity has jurisdiction to annul the marriage of one incapable because of infancy of giving consent to the marriage contract.

Under our statute a female over fifteen but under eighteen years of age is prohibited from marrying without the consent of the parent, guardian or other person having the care and government of such female and the marriage of such female may be annulled on that ground alone.

In a suit by a father in the name of his infant daughter to annul her marriage it is unnecessary to allege that she was in his custody at the time of the marriage.

I. M. Stainback ( W. H. Beers with him on the brief) for petitioner.

Fred Patterson ( Russell & Patterson on the brief) for respondent.

F. M. Brooks amicus curiae.

COKE, C. J., KEMP, J., AND CIRCUIT JUDGE DEBOLT IN PLACE OF EDINGS, J., ABSENT.

OPINION OF THE COURT BY KEMP, J.

This is an interlocutory appeal from a decision of the circuit judge at chambers in equity overruling a demurrer to a petition for annulment of the marriage of the petitioner to the respondent. The suit is brought in the name of the minor wife by her father. It is alleged that she was at the time of her marriage more than fifteen and less than eighteen years of age; that the consent of her parents was not first obtained; that she has not since said marriage or at any time lived and (or) cohabited with respondent, and that she has resided in the Territory of Hawaii for more than two years next before the filing of her suit. The demurrer, which was overruled, raised two questions which are presented by the argument as follows: (1) Has a female over fifteen and under eighteen years of age attained the legal age of marriage under the laws of this Territory, and (2) Must the petition of a father for the annulment of the marriage of his daughter on the ground of non-age show that she was living with her parents at the time of the marriage?

The further question of the jurisdiction of a circuit judge to hear and determine in equity a petition for the annulment of a marriage on the ground that one of the parties had not at the time of the marriage attained the legal age of marriage has also at the request of this court been argued as one of the issues raised by the demurrer. If this question should be decided against the jurisdiction the others need not be considered. It will therefore be considered first.

The jurisdiction of circuit judges at chambers as distinguished from their jurisdiction to hear and determine all matters in equity is set forth in section 2272 R. L. 1915, which provides: “The judges of the several circuit courts shall have power at chambers within their respective jurisdictions, but subject to appeal to the circuit and supreme courts, according to law, as follows: * * * Second. To hear and determine all matters of divorce, separation and annulment of marriage * * *.” Section 2916 R. L. 1915 further provides: “Any circuit judge may, by a decree of nullity, declare void the marriage contract for any of the following causes, existing at the time of the marriage: * * * (2) That the parties, or either of them, had not attained the legal age of marriage. * * *” And section 2917 R. L. 1915 provides: “A suit to annul a marriage on the ground that one of the parties was under legal age may be brought by the parent or guardian entitled to the custody of such minor. * * *”

It is clear that these statutory provisions confer upon circuit judges at chambers jurisdiction to hear and determine at law such a case as we have here presented but they cannot be regarded as depriving equity of jurisdiction, if it otherwise would have it, merely on the ground that they provide 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. 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” (Dole v. Gear, 14 Haw. 554, 564). “The general rule is that where jurisdiction in equity has become established a statute creating a remedy at law or removing the obstacles at law upon the existence of which the equity jurisdiction was originally founded does not oust equity of that jurisdiction, unless the statute affirmatively discloses the legislative intent to make the legal remedy exclusive” (21 C. J. 45). The statutory provisions relative to the jurisdiction of circuit judges in equity are contained in section 2473 R. L. 1915, which provides: “The several circuit judges 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 law.” Annulment of marriage is not among the cases enumerated. It is therefore clear that if our courts of equity have jurisdiction of such cases it is by virtue of their authority to hear all other cases (than those enumerated) according to the usage and practice of courts of equity where there is not a plain, adequate and complete remedy at law. In other words, unless the pleading states a case within the general jurisdiction of equity then our courts of equity are without jurisdiction. We therefore inquire whether it falls within the general jurisdiction of a court of equity without statutory authority to entertain a suit for the annulment of marriage on the ground of non-age.

In many of the states the courts of equity, independently of statute but by virtue of their jurisdiction to vacate contracts, have exercised the power to annul a contract of marriage when a recognized equitable ground, such as fraud, duress, mistake or lunacy, is explicitly charged.

In New York the court possessing chancery powers has without statutory authorization assumed jurisdiction to annul a marriage for lunacy (Wightman v. Wightman, 4 Johns. Ch. 343), and for fraud ( Ferlat v. Gojon, 14 Am. Dec. 554), but has declined for want of jurisdiction to do so for impotency ( Burtis v. Burtis, 14 Am. Dec. 563). In New Jersey the courts of equity without statutory authorization have claimed and exercised jurisdiction to decree a marriage null for want of consent, the ceremony having been performed in jest (McClurg v. Terry, 21 N. J. Eq. 225), and for duress (Avakian v. Avakian, 60 Atl. 521), and for fraudulent concealment of pregnancy (Carris v. Carris, 24 N. J. Eq. 516), and where petitioner at the time of the ceremony was so much intoxicated that he did not comprehend what was taking place (Selah v. Selah, 23 N. J. Eq. 185), but have refused to entertain jurisdiction in a case brought on the ground of impotency, that not being in the opinion of the court a recognized equitable ground and there being no statutory provision therefor (Anonymous, 24 N. J. Eq. 19). In Vermont it is held that a court of chancery by virtue of its ordinary equity jurisdiction may decree a marriage null and void if the...