Kamahalo v. Coelho

• Decision Date: 22 March 1919
• Docket Number: No. 1120.,1120.
• Citation: 24 Haw. 689
• Parties: KEAO KAHUMUHUMU KAMAHALO v. WILLIAM J. COELHO, ET AL.
• Court: Hawaii Supreme Court

24 Haw. 689

KEAO KAHUMUHUMU KAMAHALO

v.WILLIAM J. COELHO, ET AL.

No. 1120.

Supreme Court of the Territory of Hawai‘i.

Argued February 27, 1919.

Decided March 22, 1919.

OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT. HON. C. W. ASHFORD, JUDGE.

Syllabus by the Court

A judge may call witnesses to supplement the evidence produced by the parties when he believes this necessary.

The question whether a witness is qualified as an expert is largely within the discretion of the trial judge.

J. Lightfoot for petitioner.

W. B. Pittman ( Andrews & Pittman on the brief) for respondents W. J. Coelho and W. J. K. Coelho, a minor.

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

OPINION OF THE COURT BY EDINGS, J.

The petitioner-appellee instituted a suit in the circuit court of the first circuit to compel the defendant-appellant, William J. Coelho, in his individual capacity and as trustee of William J. Kuniakea Coelho, a minor, to reconvey to petitioner certain realty situate in the City and County of Honolulu, which petitioner claims the defendant William J. Coelho holds in trust for her, having agreed to reconvey the said property to her upon the repayment of certain moneys advanced by the said Coelho for the petitioner as part of the purchase price of said land to be paid to the Territory. The respondent Coelho in his answer to petitioner's bill denied that he held such property in trust for said petitioner or that he ever agreed to reconvey the property to the petitioner upon the repayment of the sum of money advanced by him for the purchase price of the said property, but on the contrary alleged that on the 15th day of August, 1912, the Territory of Hawaii sold said property to petitioner under a sales agreement for the sum of $584.64, $116.60 to be paid in cash and the balance in four equal annual payments; that petitioner was indebted to said Coelho in the sum of $465, and, being unable to pay the second instalment to the Territory on the purchase price of said land, suggested to said Coelho that she (petitioner) assign the agreement she had with the Territory to purchase said land to him, the said Coelho, in trust for his son in consideration of the said Coelho releasing her from the payment of the said $465, which she, the petitioner, had borrowed from the said Coelho, and that in pursuance of said request and understanding he, the said Coelho, did release petitioner from the payment of said debt of $465 and the petitioner did assign her interest in said agreement to the said Coelho as trustee for his son, William J. Kuniakea Coelho; that thereafter he, the said Coelho, made the payment due under said contract to the Territory, as trustee for his said son, and that after all of said payments had been made to the Territory under said sales agreement by him as trustee for his said son, the Territory issued a patent to said property to him as trustee for his said son, which property he now holds under said patent as such trustee; that he (Coelho) did not at any time agree to reconvey said land to petitioner upon the repayment to him of the sum of money paid by him to the Territory on the purchase price of said property, but that on the contrary the said assignment was an unconditional transfer by petitioner of said property to him (Coelho) as trustee for his said son, for a valuable consideration. Thereafter a trial was had and a decree entered, adjudging and decreeing that the said William J. Coelho as ostensible trustee for his son, William J. Kuniakea Coelho, convey to the petitioner all the right, title and interest which he now holds in his capacity as ostensible trustee for said William J. Kuniakea Coelho in and to the lands described in the bill of complaint (describing the same) and that said William J. Coelho pay to said petitioner the sum of $47.17, the same being the difference between the amount due under said mortgage to the Mutual Building & Loan Society of Hawaii, Limited, and the amount paid by said William J. Coelho to the commissioner of public lands, with interest thereon, and that said petitioner do within thirty days from the time when the decree shall become final pay said Mutual Building & Loan Society of Hawaii, Limited, the principal and interest due under said mortgage in the sum of $600.47 together with the expenses in connection with the attempted foreclosure thereof in the sum of $93.75, and that respondent pay the costs taxed at $75.50, from which said decree an appeal was duly perfected by the respondent to this court.

The evidence produced by the parties on the trial was exceedingly voluminous, and, as usual, exceedingly contradictory, but it was the sole function of the trial judge to determine the preponderance of the evidence and the credibility to be attached to the testimony of any and all witnesses. Of course when a trial judge suffers improper or irrelevant and prejudicial evidence to be introduced and does not specifically and positively disregard and repudiate such evidence in his findings of fact, his decision or decree is reviewable as an error of law by this court. That the trial judge admitted evidence of this character and was influenced in his decree by this irrelevant and improper evidence is the contention of the respondent-appellant, predicated upon the following proceedings and testimony:

First. The respondent-appellant (Coelho) testified that he had loaned to the petitioner certain sums of money and when asked where he had obtained this money to make the loan replied that he had obtained $600 from one Antone Souza, a resident of Maui. After the submission of the case by both petitioner and respondent the trial judge, after notice to the parties, subpoenaed Souza to appear before him and upon an examination of the said Souza, conducted in the presence of the counsel for both petitioner and respondents, the said Souza testified in substance that he had paid Coelho the $600, testified to by him (Coelho), and various other sums. The introduction of this testimony can certainly not be considered prejudicial to the...