The Hawaiian gazette., 1885-04-01

1
At the October term-0ctober l5-a motion
was made by respondents counsel to place the
cause upon the calendar. The motion was
resisted OH the ground that the appeal was not
properly perfected.
Pending decision, petitioners counsel ap-
pearcd before the Court in banco on October
3lsi, and withdrew their objection TO the al
lowunce of the appeal and the case was pre-
scented and argued before the Court nn its
merits.
| On January 70, 1885. majority of the Court
rendered a decision reversing the decree of
the Chief Justice.
On nuiiUu 10y petitioner counsel, filed Jan
nary 20d the Court ordered that a rule issue
returnablc before the full Cont on the 3Oth
January, 1855, ordering the respondent "tD
show cause why the decree of the Chief Jus.
tice Of the 18th September, lssi, should not
stand a final Judgment and decree herein On
the ground thar, as appears by the records
and papers oil file no appeal was taken and
perfected as required by law"
From the testimony offered il seems clear
that the Withdrawing by counsel of objections
to the appeal was not without the consent Of
the petitioner.
A. S Hd1roH and w. X. Castle for poti-
TONER urge that the Court in banco has not OBJ
tanned jurisdiction of the cause. The absence
of a matter necessary 10 give the Court juris-
diction cannot be waived. The rule requiring
costs TO be paid within ten days as one of the
steps necessary TO au appeal has the force OF
law. Failure in this respect renders the ap-
peal nugatory and no agreement can make il
valid. Parties cannot waive requirements
which are for the benefit of the State. This
case is to he distinguished from those in which
the waiver affects irregularities pertaining to
sl,o,,
already having Jurisdiction Of the cause and
subject matter, and this matter in question
affects the cause and subject matter and can
| not be waived.
Paskuku Va. Kanoikehuehu liawn. $40.
Re 0ops, 3 Hawn. iO7.
Rex. VS.. Cullen, 3 Haw. 1922.
Est. of KaliiahUnu, July term 1866.
Paona VS.. Heanu, 8 Hawn. sol.
Tisdale VS.. bark dtBlV, Hawn. sos.
Est of Kailikauoa, Hawn. 1853.
kauhi VS.. Liaikulan, 3 Hawn. $50.
IS Cal. 2s6, Cush. 27O.
1873 Mass. i65, G Cush 30.
Il9 Mass. POS, Cush. 6lj.
IL Pick. 295, 81 Conn. $50.
% Pick 295, % Conn. LIS.
10 Cal 81, 2i Cal. 9s.
c, W. ashford for respondent. The failure
to pay costs was mere irregularity aud may
be waived. 1t is considered to be waived if
the party having a right to complain OF it takes
any subsequent step inconsistent with an in
tent ON his part to take advantage Of it. Con-
sent cures error.
Hansen vs.. Holt, IL n. II. So.
Holmes VS.. Rogers, Is Cal l9l.
Reyes VS.. Warner, 4j Cal. 60.
The Court has jurisdiction of the subject
matter, i. e. authority to take cognizance of,
try and determine cases for separation from
the marriage relation. Cooley Coust Lin, D.
397-s.
The Court may gain jurisdiction of the par
ties by their consent or by their appearance
without taking objection, i'd 400. Crane RS
DOaeRs, 20 81, also 20 Co~n. AS, 81 Conn.
los. 80 Conn. l47, Mich. 279, IL Mct. 227,
rs N H. 1882, Washington Bridye Co. RS .Ste,o-
art. 9 Horard il3, 80 Mel. 1913, ?? Nich. rs,
80 Ne. $50.
By the Court:
Upon careful review of the authorities
cited by both sides we are OF The opinion that
the rule should be discharged.
The Court in banco has jurisdiction To hear
and determine on appeal, CAUSES for separation
ir"m bed aud board. Vide Sections 1886 and
$50 Of the Civil Code.
"a Court has jurisdiction of any subject
matter, i, by the law ofits organization it las
authority to take cognizance of. try, aud de-
termine cases OF that description. II il as
sumes 10 act ia u case over which the law does
not give II authority, the proceeding and iudg-
ment will be altogether void, and rights Of
property caunut he divcsted by it. And on
this point there is an important maxim uI the
law that consent will not confer jurisdiction,
by which is meant that the consent OF PARTIES
cannot empower Court to act upon subjects
which are not submitted to its Judgment by the
law" C"oley's Constitutional Limitations y.
39s. A jurisdictional defect OF this character
can be made available at any stage Of the case,
as the defect Is fundamental, being a total
want of power TO act at all. familiar illus |
tration would be District Court assuming to |
10 Try libel Tor divorce, OF an indictment for
murder.
In the case We are considering the Court had |
Jurisdiction % the parties; they appeared and |
submitted their case OH its merits to the final |
adjudication Of the Court. Says Cooley, id. y. |
100: at is general rule that irregularities |
IN tie course of Judicial proceedings do not |
render them void. An irrcgularity may be |
defined the failure 10 observe that particular
course of proceeding which, conformably with /
the practice Of the Court, ought to have been |
observed in the case" The learned author
says further that even in the same proceeding /
an irregularity may be waived, and will COM
monty he held to be waived if the party en-
titled to complain Of it shall take any suisse
quent step in the cause inconsistent with an
intent on his part to take advantage of it,"
This doctrine seems to be abundsntly sus-
tanned 10y authority. In the case of the WASH
ington Bridge Co. VS., Stewart, Howard, L. /
5. fl3, the Supreme Court of the United
States held that though this Court had juris-
diction only, on appeal, from fi,ldi DEGREES of
The Circuit Court, yet il this Court actually
jurisdiction and afirms the decree
OF Circuit Court, ETC., the question whether
the decree appealed from was final, cannot be
raised OH a second appeal. The Court say. ito
permit afterwards, upon an appeal from pro-
ceedings on'his mandate, suggestion OF the
wait OF jurisdiction OF this Court upon the
first appeal, as a sufficient cause for re -eIam-
ming the Judgment there given, would GER
iainly be a novelty in the practice of Court
Of equity"
In Pos VS. IriRiams 80 Conn. ii7, tue
defect was that commissioners 10 settle
had not taken special statutory
oath. The Court say There are certainly |
decisions IN our reports that the
positive requirements of statutes in certain
eases must be exactly complied with. But
there are quite many, especially OF late
years, TO the effect that although an error
may be of a fatal nature, yet the right to take
advantage OF it may be lost by laches or
waiver creating an estoppel." $50 far as there
is coufict, those decisions are most consis-
tent with sense and justice which prevent a
party FROM going to trial on the merits and
accepting the result if favorable, but if other
wise, taking advantage OF a technical difficulty
which he knew Of or should have known
from the beg inning" "The general rule is
that when the Court has Jurisdiction of the
PARTIES aiid the cause, and there has been IN
the course oil the proceedings an irregulsrity
which might be fatal, as the omission To DO
some act required Uy law or the doing il i'm
properly, the objection may b; waived, ora
party may be estopped fromr Using ii.".,
1t Is not necessary to discuss the question
Of estoPpel or waiver by implication, for in
the case al bar, there Was an express waiver
u the irregularity in open Court, and we are
freed from difficulty in deciding whether the
party having The right to complain may waive
The defect or irresulariry by Section of tue
Civil Code which enacts thai,
Private agreements shall have no effect 10
,oniravene a y law which concerns public
order or morals. But individuals may, in all
;ases in which it is not expressly or implicitly
,rohibited, rcnounce what the law has estab-
ished in their favor, when such remuneration
ioes not Affect the rights OF others, and is not
contrary to the public good"