Reynolds v. Reynolds

24 Haw. 632, 1919 Haw. LEXIS 73

• Court: Hawaii Supreme Court
• Decided: January 23, 1919
• Docket: No. 1136
• Status: Published

Opinions

OPINION OF THE COURT BY

EDINGS, J.

(Kemp, J., dissenting.)

The matter comes before this court upon the respondent-appellant’s appeal from an order of the circuit judge allowing the complainant-appellee the sum of sixty dollars per month as temporary maintenance pending the determination of a suit for separate maintenance brought by her, or until the further order of the court.

It appears that upon the 20th day of Sepember, A .D. 1918, Rose S. Reynolds instituted a suit in equity in her own name against Charles A. Reynolds, her husband, for separate maintenance, to which suit respondent-appellant interposed a demurrer setting up and relying upon the following ground of objection: “That the above petitioner, Rose S. Reynolds, cannot maintain an action-for maintenance against said respondent, Charles A. Reynolds, in her own name, said parties being husband and wife,” and also upon the ground that “The return ivas sufficient to apply to the bill of complaint and contained facts sufficient to show cause why the order should not have been made.”

The demurrer was heard by the circuit judge and by him overruled.

The first ground of demurrer is that a wife cannot sue her husband in equity without suing by a next Mend. at common law, waving to the identity of husband and wife, neither can sue the other; but, in equity, when the wife’s claims are adverse to her husband’s, she by her next friend may sue her husband and likewise the husband may sue the wife. Where a state court decreed a divorce a mensa et thoro between man and wife allowing alimony to the latter, and the husband moves out of the state for the purpose of placing himself beyond the jurisdiction of the court, “the wife can sue by her next friend in a court of the United States, having equity jurisdiction, to recover the amount of alimony decreed by the state court.” Barber v. Barber, 62 U. S. 582. The doctrine laid down in this case seems to have been generally followed by the courts of the several States and we see no sufficient reason to induce us to depart from it. As remarked by Chief Justice Marshall in Crockett v. Lee, 20 U. S. 522, in considering a question of equity practice, “The hardships of a particular case would not justify this tribunal in prostrating the fundamental rules of a court of chancery; rules which have been established for ages on the soundest and clearest principles of general utility.” The general rule in equity is that a feme covert has no right to file a bill in equity against her husband without the interposition of a next friend. Wood v. Wood, 2 Paige (N. Y.) 454; 10 Ency. Pl. & Pr. 197. The statute in this Territory upon this subject, so far from relaxing this rule confirms it, for section 2954 R. L. 1915 provides that “A married woman may sue and be sued in the same manner as if she were sole; but this section shall not be construed to authorize suits between husband and wife.”

The order of the circuit judge overruling the demurrer upon this ground is reversed and the cause is remanded for further proceedings consistent with this opinion.

O. C. Bitting for complainant. Thompson é Oathccirt for respondent.

We do not consider tlie second ground of exception well taken, being a question of fact in the discretion of the trial judge whose ruling upon the same is not final and may be rescinded upon a trial of the cause in the lower court.