The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1903-01-22
MUST PAY
AL|MONY
Wives Provided for
Without the
Divorce.
Supreme Court Ruling
Given in Dole
Case.
Court Stays the Contempt Pro-
ceedins But Says Alimony
Must Be Paid.

The Supreme Court. in an opinion
la affirming Judge Gear in the Dole di
vorce case, yesterday decided that hus
bands are liable for the separate main
tenance of their wives in Hawaii, ever
though there is no suit for divorce OF
separation pending. The ruling was
made upon a writ of prohibition sued
out by E. P. Dole to prevent Judge
Gear from enforcing an order for the
payment of temporary alimony to Mrs
Dole. The Supreme Court decides, how
ever that Judge Gears order is appeal
able, and that pending such appeal he
had no power to punish as contempt
failure to pay temporary alimony.
AS the court decided the question
upon which an appeal is taken, the case
will now probably be tried upon its
merits. Judge Gear. however, is not in
the city, and it is hardly likely that
Judge De Bolt will take up the matter
at the next term, in view of the large
amount of criminal business.
The opinion is written by Chief Jus
tice Frear, and Justice GaIbraith dis
sents, holding that the order for tenn
porary alimony is not appealable
The syllabus of the opinion is as fol-
lows:
Equity may grant maintenance to
a wife without special statutory au-
thority and independently of a suit for
divorce or separation, on the ground
that the remedy at law through the
pIedging of the husbands credit for
,necessaries is inadequate.
This being deemed the better and
more prevalent view at present in the
United States, the court is not required
to follow the old English rule to the
contrary.
THE old English rule need not be
followed, for the reasons stated in the
opinion, although % our statute CIV.
L. Sec. 1860 defining equity jurisdiction
was tODleu IIOlll lIG SldlulGS VI AeSSSS'-
chusetts where the old English law is
regarded as the correct rule, and (2)
our statutes I'D. Sec. 1000 adopts thej
common law, as ascertained by English
and American decisions, and (3) the
legislature has made express provision
for alimony in connection with divorce
and separation I'D. Oh. 1850.
Temporary maintenance may be |
granted in an equity suit for mainten-
ance.
tenance is appealable.
THE circuit judge is without jurisdic- |
ton to enforce such order by contempt
pending an appeal.
Under a prayer for writ of prohi-
bition against further proceedings in a
cause. writ may be allowed against
further proceedings in one branch of the
cause and denied as to the remainder
The rule that the writ will not be
granted unless the question of jurisdic-
ton has first been presented to the
lower court does not apply to summary
of a quasi-criminal nature,
as in cases of contempt"
Justice Galbraith criticises the ma
jority opinion and says the rights Civ
en- to the wife are equally sacred and
entitled to the protection Of the courts
with the property rights of the husband
and should not be permitted to be fritz
tered away by appeal
He says, further, that by no possible
would the husband be en-
titled to recover the amount of the al
lowance if paid, and the amount of
alimony was not excessive Allowing
an appeal, Justice Galbraith says, is a
practical denial of justice, "and win
also permit a husband who wants to
avoid his marital obligations and to
turn his wife over to the tender mer-
cies of her friends to do so completely.
Pending the appeal he may give away
his property or send it out of the Ter
'itory, or he may remove himself from
The jurisdiction and leave his wronged
life partner with her order for alimony
lite and expense money, af-
hrmed by the appellate court, and with
10 means Of enforcing the same"
a SECOND DECISION.
The lower court is affirmed in the
,ase of Manuel de Quadros VS.. F'rear,
It al, suit for possession Of property.
". Austin Whiting sat on the bench in
place Of Chief Justice Frear, disqual-