McCandless v. Carter
| Decision Date | 24 January 1907 |
| Citation | 18 Haw. 218 |
| Parties | L. L. McCANDLESS v. GEORGE R. CARTER, GOVERNOR OF THE TERRITORY OF HAWAII AND JAMES W. PRATT, COMMISSIONER OF PUBLIC LANDS OF THE TERRITORY OF HAWAII. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT.
Syllabus by the Court
A circuit judge is without jurisdiction to vacate a decree after an appeal from it has been allowed and taken to the supreme court, even though the allowance of the appeal was discretionary with him.
An interlocutory decree and order allowing an appeal from it may be prepared by the losing party and presented by him to the circuit judge for signature and allowance without notice to the opposite party-though ordinarily that would not be in accordance with the better practice; mere failure to give such notice, no injustice resulting, does not call for the dismissal of the appeal.
In an interlocutory decree overruling a demurrer it is unnecessary to include a clause giving leave to answer over, even though that was included in the opinion, and especially if an appeal is to be allowed from the decree; the omission of such clause though unintentional is not ground for dismissing the appeal.
G. D. Gear and A. G. M. Robertson for plaintiff.
E. C. Peters, Attorney General, and F. W. Milverton, Deputy Attorney General, for defendants.
This is a bill for an injunction. The circuit judge filed an opinion overruling a demurrer and allowing ten days for answering. The respondents, however, prepared a form of decree overruling the demurrer but omitting leave to answer over and obtained the judge's signature to it as well as to an allowance of an appeal from it ex parte-informing the judge, in response to the latter's inquiry, that he had not submitted the form of decree or order allowing the appeal to opposite counsel and that he did not deem it necessary to do so. Subsequently, the appeal having been perfected and the case brought to this court and placed on its calendar, the circuit judge, on complainant's motion, signed an order vacating the decree and the order allowing the appeal-on the ground apparently that that decree and order had been signed inadvertently without previous notice to opposite counsel.
The complainant now moves this court to dismiss the appeal on the grounds in substance, that the decree and the order allowing the appeal have been vacated, that they were obtained ex parte, and that the decree was not in conformity with the opinion. Counsel for the movant having been heard the following opinion was rendered orally without calling upon opposing counsel:
One ground of the motion to dismiss is that the circuit judge has signed an order vacating the decree appealed from. When that order was signed the decree had been signed by the judge, the appeal from it had been allowed by him and had been perfected, and the case had been brought to this court and placed upon the calendar of this court. The attempt to vacate the decree, it goes without saying, was ineffectual. The circuit judge had lost jurisdiction of the matter so far as the appeal to this court is concerned. It is true it is discretionary with him whether to allow an appeal from an interlocutory...
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