Honolulu Republican, Volume IV, Number 496, 14 Ianuali 1902 — DECISION IN KEW ALO MANDAMUS [ARTICLE]

DECISION IN KEW ALO MANDAMUS

i Judge Horaphreys Held to be Qualified to Hear New Testimony. GALBRAITH WRITES THE OPINION DEMURRER OVERRULED AND WRIT TO AS PRAY - ED IN PETITION. Case New Goes to First Judge of the First Circuit Court Who Is to Re-open the Matter for Taking Testimony Under the Amended Complaint—Decision in Full. The Supreme Court handed down a decision yesterday in the mat- ~ the application of Harvey R. Hitchm* ■ cork. Lawrence H. Dee. Harry LEvans. Charles .1. Fishel, on hehatf of themselves and a’l other st ckhoiders in the Kanialo Suear Company, Limited, for a writ of mandamus against Honorable A. S. Humphreys. First Judge of the Circuit Court of the First Circuit. Written by Galbraith. The opinion of the Court is written by Associate Justice Galbraith and is as follows; An order <;f this Court remanding an equity cause to a Judge of the Circuit Court with direction to rei reive evidence on an issue raised by amended pleadings filed after the ! dose of the original hearing before said Judge, and in support of which i evidence was off-red and rejected, j does not direct a “new trial" and is not within the inhibition of S-ctii.-n of the Organic Act disqualifying a j Judge from sitting “on an appeal or j new trial, in any case, in which h > | may have given a previous judg- | raent." ■ A petition and application was prei sented to this Court for a pre-emptory k ' writ of mandamus against the First fudge of the First Circuit Court oom- < j manding him to proceed with the j J | hearing of a certain suit in equity | J remanded to him for further proceed 1 (j ings by order of this Court. An order; ! to show cause was issued returnable ( the first day of the present session. I i The respondent app am! and inter- j I posed a demurrer alleging that the petition does not state a cause of ac-j tion. The Petition's Allegations. It is alleged in the petition that the petitioners heard by the said First Judge of the First Circuit Court, that from the decree rendered H’“Y< in an appeal was perfected to this Court and a decision rendered November S. 1901. (ante pp. 641 to •‘D wherein the decree appealed ; Com was reversed ami said cause ( was remanded to "the Judge of the ! Circuit Courj of Vie First Circuit wiith instructions to receive such evidence as may be offered un ier th“ i amendments to the pleadings consistent with the foreg ung views as may I be proprr;" that the respondent set J aside cause for hearing in pursuance '■ of the direction of said mandate; I that on the day s» t for the hearing . the respondent suggest d his dis- ‘ qualification and want of jurisdiction i to hear said c ause and after argument I i decided against his jurisdiction and i declined to proceed: that there is no! I other Judge of the First Circuit Court j now in said circuit except the respon . dent: that his refusal to proceed with | the hearing is a denial of a clear, legal and existing right and one that cannot be enforced in anv other man- ! nor than that sought in this proceed- . ing. Respondent's Grounds ► ( The respondent it appears, deelin-: i ed and refused to act in the premia son two grounds: tli that it was • not clear that this court intended to ; >emand the cause to the First Judge of the First Circuit Court; 1 2) that i under ; ; k- provisions of S- st of the. Organic \ct of the Territory he was ■ disqualify d and had no power to pro II feed. It is an answer t th* first objection to -tate that there is no doubt in the mind of the merab-rs of the mandat ami tha; said cause was re- 1 Inland- d to the respondent for further i hearing This int-ntion clearly ap pears from the opinions filed in the i . cause and the ground on which the tuling of the court was based. The (fact that the attorneys for the de tendants in the equity suit did not : raise the objection to respondent . proceeding to hear tn® cause is a i -Tronc influence that they understood ■ | the real intention of the court in retreading the cause Provision of Organic Act. The provision of the Organic Act that is claimed to disqualify the re-:-p ndent reads; "No judge shall sit on an appeal or n- w trial, in any case, in which he may hav e given a j previous judgment." It is contended that the mandate directs a new trial of the cause and , that the respondent having rendered

a previous judgment. 1. e.. the one from la that cause. he has t afijower to proceed as directed ia '■^rnar.da?-. The language of the I Os**:. Art is plain, artambigu-;> scd mandatory. Xo judr® can #;t on j a new trial of aav case wherein i has r» r.dered a previ as judgment. | If r\ maadar direct# a new trial 1 then the contention of th# respondent is correct and he is without jurisdiction and cannot proceed. ) W h a* the Mandate Ci'ects. It ;s contended for the p titioaers that the mandate doe# not require or < ont* mpiate a new trial but only .j re ts the completion and perfect! a if th“ trial had at the former hearing. Tfa“ hearing of evidence on new issues raised by the amended plead f mgs and not a rehearing of toe issues on which evidence was received; that the decree appealed from ) wa« not heard on its merits; that it was reversed on & motion based on ;he ground that the trial had not been complete and that the terra new trial” in the legal and technical . use of the t-rm is never applied to equity cas-s and that for this reason 5 life disqualification of the Organic j A t does not apply to this case. s Definition of a Trial. A trial is defined as "the examina ■ lion before a competent tribunal, ac- ; cording to the laws of the ’and. of , the facts put in issue in a cause, for . the purpose of determining said issue." Bonvier’s L. D. A new trial 1 is "a re-examination of an issue in fact before a court and a jury, which f has been tried at least Once befor . j the same court.” Bouvier's L. D. A reading of the opinions referred to will show that the cause was re- : manded not “to retry" an issue or . J issues that had been tried by the r respondent but to try an issue that , he had refused to try; that a retrial | of the entire cause was not contem- ! plated nor expected by either the 1 i court or the counsel employed in the ’(cause and that a trial—the examina j lion—of a fact or facts put in issne •I by the amended pleadings was all that the mandate directs. The fact that the decree appealed from was reversed and another decree must be tendered at the conclusion of the healing does not militate against this purpose of the court for the reason that it was necessary to reverse the decree in order that the cause might he re-opened for a fuiv ther hearing on the new issue raised by the amended pleading filed and alj lowed after the hearing had conclud- , fd. Another decree, either in the same form or in different form and spbstance covering all of the issues tried will be necessary at the close of the hearing directed. New Trial Not Ordered. We conclude that a new trial was (not ordered or contemplated by the mandate and that the respondent is not disqualified under Section 84 of I the Organic Act from hearing the j i ause as directed by the mandate. We do not deem it necessary in this cause to pass upon the question raised and discussed at the hearing 1 as to whether cr not the phrase "new j trial" is at any time applicable to causes in equity. Let the demurrer be overruled and the writ issu ll as prayed in the petition. W. F. FREAR. C. A. GALBRAITH. A. PERRY. G. A. Davis. J. A. Magoon. T. McLains Stewart and F. M Hatch for petitioners. Kinney. Ballou A- McClanahan. Robertson £ Wilder and F W. Hankey for respondent.