Cnty. of Maui v. Rego

• Decision Date: 13 January 1919
• Docket Number: No. 1062.,1062.
• Citation: 24 Haw. 608
• Parties: THE COUNTY OF MAUI v. MARY DO REGO, ET AL.
• Court: Hawaii Supreme Court

24 Haw. 608

THE COUNTY OF MAUI

v.MARY DO REGO, ET AL.

No. 1062.

Supreme Court of the Territory of Hawai‘i.

Submitted December 10, 1918.

Decided January 13, 1919.

ERROR TO CIRCUIT COURT, SECOND CIRCUIT. HON. W. S. EDINGS, JUDGE.

Syllabus by the Court

Where a judgment or decree is several and the interests represented by each of the co-parties are separate and distinct from and not adverse to those of the others any party may sue out a writ of error to protect his own interests without joining his co-parties.

If the facts alleged in the challenge to the array of jurors are sufficient, if true, to sustain the challenge, the court proceeds to try the truth of the facts alleged, but if the facts alleged present no legal grounds of objection to the jury they may be summarily overruled.

A statute which provides that jury commissioners, among other qualifications, shall be of opposite politics held to be mandatory and a challenge to an array of jurors drawn by commissioners alleged to belong to the same political party to be sufficient, if true, to invalidate the jury.

Eugene Murphy for plaintiffs in error.

E. R. Bevins, County Attorney of Maui, for defendant in error.

COKE, C. J., KEMP, J., AND CIRCUIT JUDGE HEEN IN PLACE OF EDINGS, J., DISQUALIFIED.

OPINION OF THE COURT BY KEMP, J.

This is an action by the County of Maui against Mary do Rego and her husband Antone do Rego, Caroline J. Moniz and her husband Diego Moniz, the Wailuku Sugar Company, Limited, an Hawaiian corporation, Mrs. M. G. Rodrigues, John Garcia, Mrs. Rose Bento and her husband C. P. Bento, Mrs. Mary Schrader and her husband Geo. B. Schrader and Ellen K. Robinson and her husband W. T. Robinson to condemn for public use certain lands owned by said defendants. After alleging a compliance by the board of supervisors of the County of Maui with all the statutory requirements and that the property sought to be condemned for public use is necessary for the opening of a road from the present upper end of Wells street to a road leading to the armory from High street in the town of Wailuku and is sought to be condemned for use as a public road, the petitioner sets out a description of five tracts which constitute the whole of the property sought to be condemned. The fourth tract set out in the petition is alleged to belong to the defendants, plaintiffs in error, Ellen K. Robinson and W. T. Robinson and the ownership of each of the other tracts is alleged to be in some one or more of the other defendants.

The defendant Wailuku Sugar Company, Limited, filed an acceptance of the award of damages made in its favor by the board of supervisors. All other defendants except Ellen K. Robinson and her husband W. T. Robinson failed to appear and answer, were adjudged to be in default and the case proceeded to a trial between the plaintiff and said Ellen K. and W. T. Robinson before a jury. The jury's verdict in favor of the said defendants Ellen K. and W. T. Robinson was for the same amount awarded them by the board of supervisors and they have come to this court upon writ of error.

The plaintiff, defendant in error, has suggested in its brief that all necessary parties have not been joined in the writ and that the writ should therefore be dismissed.

In their petition for the writ the plaintiffs in error show that many other persons were joined with them as codefendants but assert that no proceedings were had against said codefendants and no issue went to the jury in regard to said codefendants and that the cause of action was against plaintiffs in error separately and the only issue submitted to the jury was between plaintiff, defendant in error, and them and that the judgment involved herein is only between said parties. These allegations are borne out by the record and make it unnecessary to join the other defendants either as plaintiffs or defendants in error.

“Undoubtedly the general rule is that in cases at law where the judgment is joint all the parties against whom it is rendered must join in the writ of error or the writ will be dismissed.” Robinson v. Kaae, 22 Haw. 397, 398.

“The general rule respecting appeals is that co-parties to an action who do not join in the appeal must be served with notice of appeal when their interests are adverse to those of the party prosecuting the appeal.” Kealoha v. Halawa Plantation, 24 Haw. 436, 439.

“Where a decree or judgment is several both in form and in substance, and the interest represented by each of the co-parties, plaintiff or defendant, is separate and distinct from that of the others, any party may appeal or sue out a writ of error separately, to protect his own interests, without joining his co-parties in the appeal, and without a summons and severance.” 2 Cyc. 760.

In this case the judgment is several and the interests of the parties omitted from the writ are separate and distinct from and not adverse to those of plaintiffs in error. They were therefore properly omitted from the writ.

The first assignment of error complains of the over-ruling of what plaintiff in error designates a plea in abatement, but which is in fact a challenge to the array of jurors alleging “that the jury drawn and empaneled to try said cause is improperly constituted in that the law has not been observed in the matter of the appointment of the commissioners who drew said jury in that D. C. Lindsay, Esq., and Patrick Cockett, Esq., the jury commissioners appointed by this court to draw said jury, were not men well known to be of opposite politics, but were in fact at the time of their appointment, and now are members well known to be of the same politics, to wit, members of the republican party.”

Section 2411 R. L. 1915 is in part as follows: “The judge or judges of each circuit court shall, prior to the first day of December of each calendar year, appoint for a period of one year from and after the said first day of December two persons as jury commissioners, who shall be voters of the circuit, well known to be of opposite politics and of good reputation for intelligence, morality and integrity.”

When plaintiffs in error presented this plea to the court they offered to prove the allegations contained in the plea,–that is, that both of said jury commissioners are, and were at the time they were appointed jury commissioners, members of the republican party. The court refused to hear evidence and overruled the plea, and in so doing said: “The court can only say that before the names were drawn for the jury and after they had been appointed jury commissioners, some time after this jury was drawn, I myself called Mr. Cockett into my office and asked him if he was a democrat and he assured me then that he was a democrat. Again about two weeks ago Mr. Cockett told me that he had changed from democrat to republican; but that was only within the last two or three weeks.”

If the facts alleged are sufficient, if true, to sustain the challenge, the court proceeds to try the truth of the facts alleged. If the facts alleged present no legal grounds of objection to the jury they may be summarily overruled without any replication thereto being filed. 24 Cyc. 333.

We think the correctness of the court's action in refusing to hear evidence as to the truth of the allegations contained in the challenge depends upon whether the allegations are sufficient to sustain the challenge. If they are sufficient the court should have heard the proffered evidence. If they are insufficient the summary overruling of the challenge constituted no error.

If the provisions of section 2411 R. L. 1915, which we have quoted, are mandatory then the jury commissioners must be well known to be of opposite politics. The challenge in this case denies that the commissioners who drew the jury in question were of opposite politics. The disallowance of a challenge to the array which should have been sustained...