In re Beckley's Estate
| Citation | 31 Haw. 150 |
| Decision Date | 25 October 1929 |
| Docket Number | 1882. |
| Parties | IN THE MATTER OF THE ESTATE OF F. W. K. BECKLEY, DECEASED. |
| Court | Supreme Court of Hawai'i |
Argued September 4, 1929.
SUGGESTION OF DISQUALIFICATION.
Syllabus by the Court
Under the part of section 84 of the Organic Act which provides that no person shall " sit as a judge * * * on an appeal from any decision or judgment rendered by him, " a justice of this court is disqualified to sit in review upon a question of law reserved to this court by a circuit judge under the provisions of section 2513, R. L. 1925, which question requires this court to determine the validity or invalidity of an order previously made by said justice when a circuit judge.
C. A Gregory for the firm of Smith, Wild & Hoppe, for the disqualification.
F Schnack contra.
The above entitled case is now in this court upon questions of law reserved by the circuit judge under the provisions of section 2513, R. L. 1925. The preliminary question as to the qualification or disqualification of Mr. Justice Banks to sit in the case was raised before the hearing by the suggestion of Mr. Justice Banks himself and was disposed of by majority ruling of this court that said justice was so disqualified. This opinion is in support of the ruling so made at that time.
One of the questions submitted by the trial judge is whether or not a fee awarded to Ferdinand Schnack, as master, by the presiding judge in probate in the above entitled matter on June 2, 1924, is a proper charge against the estate in probate of F. W. K. Beckley, deceased. Whether or not the charge referred to is a proper charge against said estate is dependent in part upon the jurisdiction of the judge of the probate court to order an accounting and to appoint Mr Schnack master in said matter, for the purposes, at the time and in the manner hereinafter set forth.
The record before us contains as exhibits " D" and " E" copies of two orders made by Mr. Justice Banks in said matter as the then judge of said probate court under dates of October 7, 1921, and February 3, 1922, respectively. Omitting caption, title, dates and signatures, they are as follows: Order of October 7, 1921: " This matter coming on before me for hearing on the petition of Sabina K. Hutchison, asking for an accounting from Emma Metealf Beckley, and on the return of Emma M. Nakuina (formerly Emma M. Beckley), and it appearing that the prayer of said petition should be granted, and it further appearing from the statements of respective counsel that it is impractical to secure an accounting from Emma M. Nakuina without a complete examination into her accounts, and the respective counsel waiving any claim for an accounting because of any personal property owned by said F. W. K. Beckley at the date of his death, and other good cause appearing therefor, it is hereby ordered, adjudged and decreed that the said Emma M. Nakuina render a full, true and correct accounting of the estate of the said F. W. K. Beckley, but not of any personal property owned by him at the date of his death, and that said accounting be obtained as hereinafter ordered; and it is further ordered that Wm. Hoopai be and he is hereby appointed master to act in the above entitled estate for the purpose of obtaining an accounting from the said Emma M. Nakuina, and with full power in the premises to subpoena witnesses, administer oaths and do all and every act and have every power usual to masters; and it is hereby further ordered that the above entitled matter be and the same is hereby referred to the said Wm. Hoopai as master to hear the same and the parties thereto and their evidence, for the purpose of obtaining and to obtain an accounting from the said Emma M. Nakuina, and report his findings to this court." Order of February 3, 1922: " It appearing that Wm. Hoopai, the master appointed under order of court dated and filed October 7, 1921, in the above entitled matter, has resigned and good cause appearing therefor, it is hereby ordered, adjudged and decreed that F. Schnack be and he is hereby appointed master in the place and stead of the said Wm. Hoopai for the purpose of obtaining an accounting from the said Emma Nakuina as ordered in the said order of October 7, 1921, with all the powers and duties granted by said order to Wm. Hoopai."
In the opening brief for the Bishop Trust Company, Limited, administrator with the will annexed, the first proposition which said administrator seeks to demonstrate is thus set forth: " The probate court had no jurisdiction over the accounting by Mrs. Nakuina, who was trustee as well as executrix, for the reason that this accounting was in her capacity as trustee and not as executrix, and was therefore an accounting within the jurisdiction of a court of equity and not of a court of probate." In the master's brief, section two sets forth in its opening paragraph that " the next question * * * is whether or not the circuit judge properly ordered an accounting." In its answering brief the administrator with the will annexed recites: " The main contention of the Bishop Trust Company, Limited, in its opening brief was that the accounting by Mrs. Nakuina, out of which the present question arises, was improperly ordered by the probate court for the reason that such accounting was really an accounting by her as trustee, over which accounting a probate court has no jurisdiction, and not an accounting by her as executrix." Thus counsel are in agreement that one of the principal questions to be determined by this court upon the present submission is the question of the validity or invalidity of the two orders above quoted and this view, in our opinion, is sustained by an examination of the record.
The portion of section 84 of our Organic Act applicable to the present controversy, with other parts omitted, reads as follows: " * * * nor shall any person sit as a judge * * * on an appeal from any decision or judgment rendered by him." In construing the above quoted portion of section 84 with reference to the question of the qualification or disqualification of a member of this court to sit upon submissions like the present one we are confronted by two questions: (1) What is an " appeal" within the purview of the section? and (2) Within the meaning of that section, how must the judgments or decisions of the trial judge be questioned or attacked in order to render him disqualified to sit in review of the same?
(1) With reference to the first question set forth in the last preceding paragraph, the Organic Act does not contain its own definitions, but it does provide (Sec. 83) " that the laws of Hawaii relative to the judicial department, including civil and criminal procedure, except as amended by this Act, are continued in force, subject to modification by Congress, or the legislature." Chapter 146, R. L. 1925, according to its title, deals with " Appeals, Exceptions, Error." In it are the subheads " Appeals, " " Reserved Questions, " " Exceptions, " and " Writs of Error." Each term has its own technical meaning and each has its own separate provisions. Did Congress intend that only in cases coming up on " appeal, " as that term is technically used in sections 2508 to 2512 of chapter 146, R. L. 1925, in contradistinction to other methods of review provided in the later sections of that chapter, would judges be disqualified to sit in review of their own judgments and decisions? We believe that such a construction would defeat the apparent purpose of the provision, which is to secure to litigants the right of a fair and impartial review of judgments and decisions, by whatever appellate procedure is prescribed or appropriate in the premises, and before judges other than those who themselves rendered the judgments or decisions thus to be reviewed. In this view the word " appeal, " in so far as it refers to a method or methods of review in this court, is construed with reference to section 2224, R. L. 1925, which provides in part that " the supreme court shall have appellate jurisdiction to hear and determine all questions of law or of mixed law and fact which shall be properly brought before it on exceptions, error or appeal duly perfected from any other court, judge, magistrate or tribunal, according to law, or by reservation of any circuit court or judge." In Bruner v. Brewer, 20 Haw. 617, 619, in construing section 84 of the Organic Act, this court said: By analogy the word " appeal, " as used in said section of the Organic Act, extends not only to writs of error but to other methods of invoking the " appellate jurisdiction" of this court set forth in the above quoted section 2224, R. L. 1925.
(2) Within the meaning of section 84 of the Organic Act, how must the judgments or decisions of a trial judge be questioned or attacked in order to render him disqualified to sit in review of the same? If the judgment or decision is a final one and the case comes up upon direct appeal therefrom, by specific provision section 84 above quoted is applicable. By authority it is also applicable if the judgment or decision is interlocutory and the case comes up upon a writ of error which contains an assignment directly attacking such interlocutory judgment or decision. In Bruner v. Brewer, supra, the circuit judge, under the terms of a stipulation, made an order referring the issues to arbitrators. Final judgment, based on the award of the arbitrators, was entered by another judge of the circuit. Writ of error in the case was directed, as required by law to the final judgment; but one of the...
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