Notley v. McMillan

Ninth Circuit

Notley v. McMillan

16 F.2d 273, 1926 U.S. App. LEXIS 3832

CourtCourt of Appeals for the Ninth Circuit

DecidedDecember 13, 1926

DocketNo. 4929

StatusPublished

Cited by4 cases

This text of 16 F.2d 273 (Notley v. McMillan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Notley v. McMillan, 16 F.2d 273, 1926 U.S. App. LEXIS 3832 (9th Cir. 1926).

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Opinion

RUDKIN, Circuit Judge.

This is an appeal from a final decree of the Supreme Court of the Territory of Hawaii, affirming a decree of the circuit court for the first judieial circuit, declaring the appellee the sole surviving legal issue of David Pyfe Notley, deceased.

The appellee was bom at Honolulu, February 22, 1894. Por more than a year prior to her birth, her father, David Pyfe Notley, and her mother, Kamalu Kawelo, lived together in a state of adultery; the mother being at that time married to another man, from whom she was living separate and apart. As a result of this adulterous cohabitation the appellee was bom. In June, 1900, the mother obtained a divorce from her then husband, and in September following the father and mother of the appellee intermarried.

Act 71 of the Territorial Laws of 1907 (now section 3043, R. L. 1925), provides: “All children bom out of wedlock, irrespective of the marriage of either parent to another, become legitimate on the marriage of the parents with each other and are entitled to the same rights as those bom in wedlock.”

As said by the Supreme Court (if the Territory, the sole question for decision is: Was the appellee legitimated by the law in question ? That question the court answered in the affirmative. There is nothing to take this case out of the genéral rule that the construction placed upon a local law, such as this, by the highest court of the. Territory will not be disturbed by an appellate court. Kealoha v. Castle, 210 U. S. 149, 28 S. Ct. 684, 52 L. Ed. 998; Cotton v. Hawaii, 211 U. S. 162, 29 S. Ct. 85, 53 L. Ed. 131; Lewers & Cooke v. Atcherly, 222 U. S. 285, 32 S. Ct. 94, 56 L. Ed. 202; John Ii Estate v. Brown, 235 U. S. 342, 35 S. Ct. 106, 59 L. Ed. 259; Hawaii County v. Halawa Plantation, Limited (C. C. A.) 239 F. 836; Territory of Hawaii v. Hutchinson Sugar P. Co. (C. C. A.) 272 F. 856; Castle v. Castle (C. C. A.) 281 F. 609; Ewa Plantation Co. v. Wilder (C. C. A.) 289 F. 664; Halsey v. Ho Ah Keau (C. C. A.) 295 F. 636.

In view of this conclusion, it becomes unnecessary to consider the general question involved, as a discussion of that question can serve no purpose; but it is not out of place to say that the decision of the Supreme Court of the Territory is supported by the great weight of authority.

The decree is affirmed.

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RUDKIN, Circuit Judge.

This is an appeal from a final decree of the Supreme Court of the Territory of Hawaii, affirming a decree of the circuit court for the first judieial circuit, declaring the appellee the sole surviving legal issue of David Pyfe Notley, deceased.

The appellee was bom at Honolulu, February 22, 1894. Por more than a year prior to her birth, her father, David Pyfe Notley, and her mother, Kamalu Kawelo, lived together in a state of adultery; the mother being at that time married to another man, from whom she was living separate and apart. As a result of this adulterous cohabitation the appellee was bom. In June, 1900, the mother obtained a divorce from her then husband, and in September following the father and mother of the appellee intermarried.

Act 71 of the Territorial Laws of 1907 (now section 3043, R. L. 1925), provides: “All children bom out of wedlock, irrespective of the marriage of either parent to another, become legitimate on the marriage of the parents with each other and are entitled to the same rights as those bom in wedlock.”

As said by the Supreme Court (if the Territory, the sole question for decision is: Was the appellee legitimated by the law in question ? That question the court answered in the affirmative. There is nothing to take this case out of the genéral rule that the construction placed upon a local law, such as this, by the highest court of the. Territory will not be disturbed by an appellate court. Kealoha v. Castle, 210 U. S. 149, 28 S. Ct. 684, 52 L. Ed. 998; Cotton v. Hawaii, 211 U. S. 162, 29 S. Ct. 85, 53 L. Ed. 131; Lewers & Cooke v. Atcherly, 222 U. S. 285, 32 S. Ct. 94, 56 L. Ed. 202; John Ii Estate v. Brown, 235 U. S. 342, 35 S. Ct. 106, 59 L. Ed. 259; Hawaii County v. Halawa Plantation, Limited (C. C. A.) 239 F. 836; Territory of Hawaii v. Hutchinson Sugar P. Co. (C. C. A.) 272 F. 856; Castle v. Castle (C. C. A.) 281 F. 609; Ewa Plantation Co. v. Wilder (C. C. A.) 289 F. 664; Halsey v. Ho Ah Keau (C. C. A.) 295 F. 636.

In view of this conclusion, it becomes unnecessary to consider the general question involved, as a discussion of that question can serve no purpose; but it is not out of place to say that the decision of the Supreme Court of the Territory is supported by the great weight of authority.

The decree is affirmed.

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16 F.2d 273, 1926 U.S. App. LEXIS 3832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/notley-v-mcmillan-ca9-1926.

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