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decided: November 30, 1908.



Author: White

[ 211 U.S. Page 166]

 MR. JUSTICE WHITE delivered the opinion of the court.

The errors assigned are directed to the action of the court below on two subjects. Jurisdiction to consider them is challenged by the defendant in error. To understand the question as to jurisdiction and the issues which it will be necessary to consider, if it be that we have power to decide the merits, requires us to state briefly proceedings which are referred to by both parties and which are embraced in the printed transcript, without determining at this moment how far all the proceedings thus to be referred to may be considered as properly embraced in the record in the legal sense.

[ 211 U.S. Page 167]

     On May 27, 1904, as the result of a trial before a jury of an action brought by the Territory of Hawaii to recover damages for the loss of a dredge boat belonging to the Territory, through the negligence of the defendants (who are now plaintiffs in error), there was a verdict in favor of the Territory for the sum of twenty-five thousand dollars. On May 31, 1904, the defendants filed a motion for new trial, and gave notice that it would be called for a hearing on June 3. On that date the motion was continued to June 7. On June 7 the Territory objected to the court entertaining the motion because the defendants had not complied with § 1805, Revised Laws of Hawaii, requiring that the party against whom a verdict or judgment had been rendered should, as a prerequisite to moving for a new trial, "file within ten days after rendition of verdict or judgment" a bond securing the payment of costs, and conditioned against the removal or disposition of any property within the jurisdiction subject to execution. The defendants thereupon asked further time to file the bond. On the same day the court entered a formal judgment on the verdict, and also granted, over the exception of the plaintiff, the request of the defendants for further time to make and file the bond. The court was of the opinion that the statutory period commenced to run only from the date of the entry of judgment on the verdict. The bond was filed on June 7, the motion for a new trial was renewed on the same day, and was ultimately taken under advisement: The plaintiff, reserving the benefit of its exception as to the power of the court to consider the motion, agreed that the motion might be passed upon in vacation. Meanwhile the defendants presented and filed a summary bill of exceptions relating to certain errors which it was alleged had been committed by the court during the trial. In February following the judge who presided at the trial, and who was detained in San Francisco by sickness, telegraphed the clerk of the court that he granted the motion for a new trial, and had forwarded his grounds for doing so by mail. This telegram was filed by the clerk. The term

[ 211 U.S. Page 168]

     of office of the judge expired on March 2, 1905. A few days thereafter, viz., on March 4, 1905, the clerk received by mail the opinion of the judge stating his reasons for granting a new trial, which opinion was also filed. In the following April the defendants moved the court then presided over by the successor in office of the judge who had tried the cause to make a formal entry of the granting of the new trial, and this was done over the objection and exception of the plaintiff, who thereupon prosecuted a writ of error to the Supreme Court of Hawaii. The Supreme Court, after overruling a motion to quash the writ, based on the ground that the action of the court in granting a new trial was not reviewable (17 Hawaii, 374), on March 8, 1906, reversed the order granting a new trial. Putting out of view all other questions, in substance, it was held that the filing of the bond within ten days as required by the statute was essential to give the court jurisdiction to entertain a motion for a new trial, and that the court had mistakenly decided that the ten days began to run only from the date of formal entry of the judgment. 17 Hawaii, 445.

The formal judgment entered in the Supreme Court was simply one reversing the order for a new trial. Thereupon in the trial court the defendants moved to be allowed to make the summary bill of exceptions which they had previously taken more specific. Over the objection of the plaintiff this was allowed to be done, and the defendants thereupon filed an amended bill of exceptions, which was allowed, and upon this bill, conformably to the Hawaiian practice, the exceptions were taken by the defendants to the Supreme Court of Hawaii. In that court a motion was made to quash the bill of exceptions, on the ground that as amended it embraced matters not legally included within the bill as originally filed, and which were in consequence not cognizable. This motion was overruled, on the ground that although nothing was open for review on the amended bill but such questions as were legally incorporated in the original bill, the bill as amended could

[ 211 U.S. Page 169]

     not be quashed, as it undoubtedly presented matters which were embraced in the first or summary bill. 17 Hawaii, 608, 645. Thereafter on the hearing of the exceptions the court -- excluding from consideration such matters as it held were not contained in the original bill, although incorporated in the amended bill -- decided that the exceptions were without merit. 17 Hawaii, 618. Conformably to the opinion an order was entered in the minutes on September 27, 1906, overruling the exceptions. Thereupon the present writ of error was allowed by the Chief Justice of the Supreme Court of the Territory.

The two subjects to which, as at the outset we stated, all the assignments of error relate involve the correctness of the action of the Supreme Court on September 27, 1906, in refusing to consider certain of the exceptions because deemed not to have been embodied in the summary bill previously filed and its decision on the exceptions which were passed upon, and the correctness of the action of the same court, taken nearly six months previously, reversing the order of the trial court granting a new trial. Have we jurisdiction to pass upon these issues, is the first question of decision.

Our authority to review the judgments of the Supreme Court of the Territory of Hawaii is derived from the act of April 30, 1900, c. 339, § 86, 31 Stat. 141, 158, and the amendatory act of March 3, 1905, c. 1465, § 3, 33 Stat. 1035. In the first act jurisdiction is conferred over judgments or decrees of the Supreme Court of the Territory only in cases like unto those where we would be empowered to review the judgments or decrees of the courts of the several States, conferred by § 709, Rev. Stat. By the amendatory act our jurisdiction was extended so as to embrace, in addition, all cases, irrespective of the nature of the questions presented, where the amount involved, exclusive of costs, exceeds the sum or value of ...

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