The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-05-25
OPINION OF THE COURT BY
RAIT0I- I

a decree Of the circuit Judge refusing
| and dismissing a libel brought bv her
to obtain a divorce from her husband
on the ground of wilful and utter deser-
| ton for the term OF three years. The
/ libel was dismissed upon the ground
" that the parties herein had eonnived
and colfuded together for the purpose
of bringing the present suit
The evidence showed that the par
| ties were married in 1887. and lived
at Wainiha in the district of Hanalai.
| Kauai. until 1898. when the defendant
deserted his wife and went to live in
adultery with a woman named Kua.
with whom he has ever since lived at
said Wainiha. The plaintiff had her
husband and Kua arrested for adultery,
for which offense they were tried and
convicted Two children of the plain
tiff and defendant. born prior to the
desertion, are still living, one with the
plaintiff and the other with the defend
ants relatives
The Defendant fled no answer and
presented no defense He was called
by the plaintiff attorney as a witness
TO the marriage. When recalled by the
court, he testified as follows:
'fI don't mean to defy the law by
living with wahine manuahi. I came
here by request of the attorney. After
my divorce, I shall marry the woman
I am living with I helped to bring
this suit with that object in view. I
testified as to nv marriage. Was
brought here under subpoena. Have
had a talk with my wife that we
should get this divorce and then I
should marry Kua. I knew my wife
was bringing this divorce. I asked my
wife before she brought the suit, that
if she brought this suit I could marry
Kua. I went TO her because I felt /
was guilty in having deserted her. l
offered to help her with money~if she
procured the divor e. -
The plaintiff was recalled and testi-
fed: 81 heard what my husband said
Just now that he would pay me some
money if I obtained divorce. That is
true'
The question presented by this ap-
peal is whether this agreement author
lied the refusal of the divorce. While
there is no statute expressly making
collision a ground for the dismissal of
the petition in tins case, this follows
by necessary implication from Z. L..
Sec. 1884, providing for the procedure
when collision is suspected, as well as
from the general law relating to di-
vorce which will govern in the absence
of statute. Kalua v Kamaua, Haw-
IS.
In the case at lar there was no col
fusion to present TO the court false tes-
timony in support of &he libel, nor was
it shown that there were any specific
facts material to the defense which
might have been brought forward by
the respondent. The question, there
fore, is squarelv raised whether eollu-
sion means an agreement TO deceive
the court by putting in false matter
or suppressing material matter, or
whether an agreement merely as to the
prosecution of the suit and costs Is col
lusion
Bishop saws: eff the suit is carried
on by a plaintiff. not from any desire
of his own to obtain the remedy. but
for the benefit and at the request of
the defendant, there are several prin-
ciples which would lead to its dis
missal. And. as already explained, this
eollusive resorting to the court for
real purpose other than the pretended
one is, in a divorce case, one of the
forms of collision" Bishop, Marriage
and Divorce. Sec. 29.
The case cited in the text (Lloyd Y.
Lloyd. / Swab. & TT. 500 is similar to
the ease at bar except that there an
agreement as to the procurement of
evidence existed and emphasis was laid
upon the thirtieth section of the Eng
lish divorce act, which provides, '.That
if the court shall find that the petition
is presented or prosecuted in collision
with either of the respondents, then
the court shall dismiss the said petit
ton. a more recent English case,
however. discusses this aspect of col
fusion upon broad principles and both
its statement Of the question presented
and its ultimate conclusion may be
quoted In that case. which was a
libel for adultery brought by a hus-
band against a wife under clreum-
stances substantially similar TO the case
at bar, the court says:
ssThe contest raised in this case as
TO the meaning OF collision proceeds
on clear lines. On the one hand, it was
urged that collision is agreement
either. on the positive side, TO put for
ward true facts in support Of a false
case. or false facts in support Of a true
case: or. on the negative side, to sup
press facts which would prevent. or tend
to prevent inc court SEa4tllAS q 0AN VI -.
Il was insisted that. in a suit against
A wife. unless il be shown that the
petitioners charge OF adultery was in /
fact unfounded. or was supported by
false evidence, or that material facts |
in support Of defense or recrinina ton !
were concealed. there can be no coll .
Iusion on the other hand, il was |
maintained that COLLISION has a wider |
scope. and that If there be an agree
nent to prosecute suit which in /
duces the petition to prosecute It, and, /
a fortiori. If such agreement contains /
terms providing for the petitioners /
costs. and providing that the case
shall not be defended and damages /
not asked, that is COLLISION. even
though il be not shown that adultery i
was not in fact committed. or any
false facts put forward 10 prove it, |
and though no specific facts adverse /
TO the success Of the claim for divorce
are shown TO have been concealed. |
There would seem, therefore. TO be /
four questions that may be asked. /
hal