The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1881-12-14
Supreme Court OF the Hawaiian Islands
Special Term, November, 1881.
HAMA VS.. MEHKkuLA.-1N BAxco.

1
Judd, C. J., McCaRy and Austin, J. Joplin
ion Of as Court by judi, c. ).
This is a libel of divorce on the ground of
desertion which came on regularly to be heard
| by Mr.. Justice McCully at the last April
Term. Upon the proofs adduced the learned
Justice declined TO grant the divorce, where
upon the petitioner appealed to the Supreme
! Court in Bauco. The question TO be decided
is whether there is any appeal allowed by the
| law in divorce cases.
The Act Of 1870 (Clapter l6) is the main
statute on Divorce. By its second section, if
the parties last lived together on Oahu, juris-
! dction conferred upon a tribunal to COZ
sist of not less than two Justices of the Su-
! preme Court sitting at term. As the law then
stood no provision was made for an appeal on
the law or the facts. This was unnecessary,
as the decision of two Justices would be that
of a majority of the Supreme Court, and this
is final by the authority Of the 69th Article of
the Constitution.
The Legislature Of 1873 Chapter 26) re-
pealed that part of Section of the Act of
1870, in reference to jurisdiction and substi-
mled the following words: 4" Libels for Di-
vorce shall be heard by Justice OF the Su-
preme Court, presiding at regular term of
inc supreme OF circuit court. but Inc ACT
made no provision for an appeal
1t will be observed that although q single
Justice of the Supreme Court is empowered to
try such causes, it is the act of the Court at
term and not in Chambers, and consequently
the sj9th Section of the Civil Code which au-
thorizes an appeal to the Court in banco, from
decree, order or judgment of Justice of the
S1rpreme Court in Chambers, does not apply.
Jurisdiction in divorce is purely creation
of the statute and where no provision is made
by statute for AN appeal, it must be held that
the Legislature intended that there should be
none.
We are therefore obliged to hold that the
judgment of Mr.. Justice McCully, who tried
this case is final and conclusive to its facts.
The remaining question is whether any
errors of law alleged to have been made by
Justice in divorce case can be enquired into
by the Supreme Court in BancU.
We have above indicated that divorce iuris-
diction is that of the Court held by one Jus
tice, and Sections s34 to s37 inclusive, Of the
Civil Code, provide Tor exceptions on all ques-
tlons of law arising.
The appellate jurisdiction Of the Supreme
Court in Banco on all questions of law over
all inferior tribunals should be maintained I'M
less it is expressly prohibited by statute.
Such was the jurisdiction entertained by
this Court in the case of the Minister of the
Interior VS.. Glover, 3 Haw. 697, where the
statute expressly denied the right of appeal to
a jury.
We therefore hold that exceptions will lie
from the decree of the Court sitting in divorce,
and under this head, an exception to tile
finding of the Court as being contrary TO the
evidence may be taken. In considering such
an exception the rules which control conrts
when considering exceptions to verdicts of
jurics as contrary to the evidence will govern.
Ii the appellant wishes to proceed with her
exception at the next term of this Court she
may do So
W. L. Holokahiki for Petitioner, j. L. Kau-
lukou for respondent
Honolulu, Nov. 20, 1881.