The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-02-05

TON, J.
This matter came on Tor hearing
at the November Term, 1893, of the
Circuit Court of the First Circuit
the petition having been filed 18th
july, 1893, returnable at the August
Term. but continued over until the
November Term, 1893. The respond
emit filed a plea in Bar, claiming that
the matters and things set forth In
the petition were res Gdjudtcdta, hav-
ing been fully adjudicated and de
tsrmined by the said Court in a
certain suit entitled Joseph Lazarus
VS.. Kauimakaole Lazarus, which was
heard, tried and determined by said
Court at the August Term. 1893; and
wherein respondent sued for Oh
yorce from the bonds of matrimony
from the said petitioner, and wherein
petitioner answered the libel for di
yorce and made allegations against
the respondent substantially the
same as those alleged In her petition
for separation in this cause; and
wherein petitioner prayed for de
cree of separation from bed and
board of this respondent, and for
alimony. On the Oath of November,
1893, the said Court overruled the
said Plea, and respondent, by his
counsel, duly excepted to the said
ruling, and on the Both day of Nov
ember, 1898, the said Court ordered
a separat on from bed and board of
respondent In favor of the petitioner,
and ON the 5th day OF December,
1893, decree In pursuance OF said
order was. signed, and the matter
now comes here on duly allowed
bill of exceptions
1t is claimed by respondents coun-
sci that under the statute, Section 8,
p. 436, Compiled Laws, which reads
as follows, "If after a full hearing,
the Court shall be OF opinion that a
divorce ought to be granted, either
from the bonds of matrimony, or
from bed and board, an absolute de
cree shall be- entered"-the Court
might have passed on the cross-libel,
aud that the disposition of the libel
for divorce carried with it the cross
bill and everything else In the suit.
We do not think SO; we cannot so
construe the statute: We are of the
opinion, and so hold that the Court
under the statute, would have no
authority to order and decree
separation In favor of the respondent
on the libellant's libel for divorce,
but the Court could order separa
ton In favor of the libellant, instead
of divorce as prayed for. Page 434,
Comp. Laws.
This petition was filed on the 18th
of July, 1898. while the said divorce
case was still pending before the
same Court, it being finally decided
and the libel dismissed August "a,
1893, the same Judge having heard a
motion for alimony under this petit
ton and made an order that the
respondent deposit costs In Court,
pay counsel fees and pay alimODy to
the petitioner before the said date.
These orders were made on August
1, 1898, twenty three days before the
libel for divorce was dismissed.
In the decree signed by the Judge
Diminishing the libel for divorce, we
find the following words stricken out
by the Judge and his initials in the
margin: And In support of the
cross complaint of said Kauimakaole
Lac arus filed together with her an
swer herein" 1t is evident to Us
that the Court did not consider the
matter of separation In the divorce
matter, or he would not have stricken
out these words In the decree; the
separation matter was still pending
before him on the other petition, and
he had acted upon 1t In making the
said order.
The exceptions are overruled.
w. A Kinney for petitioner; G.
w. Ashford for respondent
Honolulu, January %, 1894