Makalei v. Himeni
| Decision Date | 01 October 1887 |
| Parties | MAKALEI ET AL. v. D. HIMENI. |
| Court | Hawaii Supreme Court |
APPEAL FROM DECISION OF PRESTON, J., ON QUESTION OF A REHEARING.
Syllabus by the Court
Whether a Justice will re-open a case for a new hearing after his final decree made and not appealed from, is a matter of judicial discretion from which appeal does not lie.
New counsel taking up a case must take it where they find it.
The appeal refused.
Smith and Kinney, for plaintiffs.
M Thompson, for defendant.
OPINION
In this case the defendant, by M. Thompson, his counsel, claims an appeal to this Court, on " the 13th of September, 1887 from the decision of Mr. Justice Preston, of the 5th day of September, dismissing the defendant's application to reconsider this case and remand certain accounts to the master, and also appeals from the master's report and from the decree of the said Justice of July 7th, 1887."
We find by the record that the decree of July 7th, approving the master's report and making final disposition of the matters in controversy, was made after hearing on the master's report, at which the counsel for the defendant at that time, Mr. Poepoe, attended. He made no objection to the confirmation of the report.
On the 16th of July, Mr. Thompson, who had not been of counsel in the case, filed a notice of appeal as defendant's attorney. If this appeal had been perfected, the case would have been before the Court in banco, but on the 26th of July Mr. Thompson filed a withdrawal of the appeal. Thus the time for appeal having passed, the case stood upon the decree, without appeal from the judgment of July 7th, and was a finality, according to ordinary procedure.
It may be stated here that on the 28th of July Mr. Thompson had procured an order of Court entering him as counsel, upon a showing that Mr. Poepoe had been paid his fees and withdrawn.
On the fifth of August Mr. Thompson filed an application that Mr. Justice Preston would re-open the case and grant a re-hearing. The Justice after a hearing on the motion gave a decision, fully discussing the matters on which a re-hearing was asked, and denying the motion.
This is what is appealed from. The Justice had the power, on being shown that his proceedings had been erroneous, to re-open the case. It would be a matter lying within his discretion to grant such a motion,...
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Territory Hawai`i v. Abad, 2851.
...within the discretion of the trial judge, we find no abuse thereof. ( D. M. Weston v. Daniel Montgomery, 2 Haw. 309,supra; Makalei vs. Himeni, 7 Haw. 168; Macfarlane vs. Lowell, 9 Haw. 438.) Order ...
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...it be security for the payment of the claim or other condition imposed by law.” (See also Onomea Sugar Co. v. Austin, 5 Haw. 604; Makalei v. Himeni, 7 Haw. 168.) In this jurisdiction an appeal operates as a supersedeas of the judgment or decree of a circuit judge at chambers and a stay of e......
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Nakeu v. Mahaulu
... ... Cas. No. 12, ... 086. The rule above stated has been adopted and applied by ... this court in the case of Makalei v ... Himeni, 7 Haw. 168 (called to the attention of ... counsel at the argument), and the reason for the rule, as ... applicable to the case at ... ...
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...has its foundation in the common law.” 15 R. C. L. 688. This principle has found frequent recognition in our reports. Thus in Makalei v. Himeni, 7 Haw. 168, 169, it was held that after final decree not appealed from “the justice had the power, on being shown that his proceedings had been er......