Makainai v. Lalakea

• Decision Date: 18 November 1918
• Docket Number: Nos. 1115 and 1125.,s. 1115 and 1125.
• Citation: 24 Haw. 518
• Parties: HANNAH MAKAINAI v. SOLOMON K. LALAKEA, ET AL.
• Court: Hawaii Supreme Court

24 Haw. 518

HANNAH MAKAINAI

v.SOLOMON K. LALAKEA, ET AL.

Nos. 1115 and 1125.

Supreme Court of the Territory of Hawai‘i.

Argued November 12, 1918.

Decided November 18, 1918.

OPINION TEXT STARTS HEREMOTIONS TO DISMISS.

Syllabus by the Court

The filing of a written decision sustaining a demurrer to a bill of complaint in an equity case is not a final decision within the meaning of the law of appeals and an appeal does not lie therefrom. The appeal must be taken from the decree and not from the decision.

A notice of appeal from a decision in an equity case filed before the entry of the decree will not be ordered by this court filed as of the day of the entry of the decree.

R. L. Sec. 2508 provides that notice of appeal shall be filed within five days after the filing of the decision, judgment, order or decree appealed from. A notice of appeal not filed within the statutory time is invalid and upon motion will be dismissed.

W. H. Smith for the motions.

J. Lightfoot contra.

COKE, C. J., KEMP AND EDINGS, JJ.

OPINION OF THE COURT BY KEMP, J.

This case, a bill in equity, was pending before the judge of the fourth judicial circuit. A demurrer to the bill of complaint was interposed and on June 14 the judge rendered a written decision sustaining the demurrer. On June 17 the complainant filed a notice of appeal and appeal from “that certain decision sustaining demurrer filed in the above entitled court and cause, on the 14th day of June, 1918” and duly perfected said appeal. Thereafter on July 25 a formal decree sustaining the demurrer and dismissing the bill of complaint was filed and on July 31 the complainant filed a notice of appeal and appeal from “that certain decree, sustaining demurrer filed in the above entitled court and cause, on the 25th day of July, 1918” and duly perfected said appeal.

The respondent has interposed a motion in each of said appeals seeking a dismissal thereof, the first on the ground that the appeal is from the decision and not from the decree, and the second on the ground that the notice of appeal was not filed within five days after the filing of the decree and it is upon these motions that the case is now before us.

In support of his motion in the first case the respondent has cited Un Wo Sang Co. v. Alo, 7 Haw. 673, and relies upon it as the leading and pioneer case in this jurisdiction upon the question here involved. In that case, a proceeding on a bill in equity, in ruling upon a demurrer to the bill, the judge filed a written decision concluding with the words “and therefore the bill must be dismissed.” Notice of appeal was filed. The notice was that plaintiffs “appeal from the decree herein made dismissing their bill of complaint.” The further steps necessary to perfect an appeal were taken. Thereafter a formal decree was entered concluding with “it is ordered, adjudged and decreed that the plaintiffs' said bill of complaint be and the same is hereby dismissed with costs to the defendant to be taxed.” In that case the contention of the appellant was that the decision, so-called, was a decree or equivalent to a decree and a sufficient disposition of the case if no further decree or decision had been filed to be pleadable in bar of another bill setting forth the matters so decided and that as a decided case, an appeal might be taken from the decision. In discussing this contention of the appellant the court said: “The force of this claim lies chiefly in the approximation, in this case, of what is expressed in the conclusion of the opinion to what is set forth in the decree. But while there is approximation, the expression in the opinion does not comprehend, in important particulars, what is pronounced in the decree. The opinion expressed the conclusion that the bill must be dismissed; the decree orders, adjudges and decrees it to be dismissed and ordains that the plaintiff shall pay the defendant his costs, to be taxed. But it is unnecessary to remark upon the well known differences between the statement of the opinion and legal reasoning of the court, the order or decree which is the judgment of the court and an authoritative portion of the record. * * * We hold that the statute, Section 859, which gives an appeal ‘from any decision, judgment, order or decree made by any justice at chambers,’ to be taken within ten days, by Rule 4, is to be construed to intend an appeal from the decree in cases where by the practice of courts a decree is required to be made. The term decision imports nothing else than decree, judgment or order. With whatever laxity the word decision may be used by applying it to opinions of the court, its meaning in reference to appeal proceedings is synonymous with the other terms with which it is joined in the statute” (pp. 674, 675).

The decision in the case at bar does not contain language which approximates the language used in the decree. In the decision, the judge after setting forth his views at length on the question raised by the demurrer concludes with “I am of the opinion that the demurrer should be sustained and it is so ordered.”

In this case, as in the case from which we have just quoted, a decree was entered after the appeal had been perfected, in that case purporting to be from the decree but in this case purporting to be from the decision, and in the decree in this case it is “ordered and decreed that the demurrer to the said second amended bill of complaint be and the same is hereby sustained and that said second amended bill of complaint be and the same is hereby dismissed, and that the petitioner pay the costs of this court in the sum of $39.00.”

We think it is clear, and we hold, that the rendition of the decision by the judge was not a conclusion of the matter before him and that the petitioner...