The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-12-03

&c, ud not apply 10 TINS case, because his
Honor sat with "a jury He also raised a ques-
ton as 10 the time at which the motion for a
new trial, and accompanying bond, had been
filed. The case was argued, and submitted.
T.. Martin \ Co. vs. NakOa {. al. In this case
Mr.. Justice McCully announced the decision Of
the Court in favor Of the plaintiffs.
The Court then adjourned sine die.
The following judgment in the case Of Unauna
VS. Kaapokalani was delivered on Both ultimo by
His Honor the Chief Justice -
This is an action Of trespass for taking fruit
from certain orange trees At v aimea, Oahu, tried
originally by the District Justice of hoolauloa,
9Th May. 1881, whe gave Judgment for plaintiff
for $50 damages.
The case was appealed to the Intermediary
Court Of Oahu, which was held by Mr.. Justice
Judd, May 26th, and gave Judgment for the
defendant.
1t was further appealed to the Supreme Court.
and on the 18th July Mr.. Justice Judd presiding.
the case was presented to n jury empanelled 10
try the cause, which rendered a verdict for plain
tiff with S1.OO damages. TIL defendan, moves
for a new trial on the ground that the Justice
who presided at said trial had previously given a
Judgment in the case and was therefore disquali-
fed to preside at the trial before the jury.
Defendants Counsel relies on the latter part of
Sec. $40 OF the Civil Code which reads a:
" Neither shall any Judge sit alone ON an appeal.
or new trial, in-any case in which he may have
given a previous Judgment " and also upon the
I2nd Article Of the Constitution, No Judge or
Magistrate can sit alone on an appeal or new
trial IN any case on which he may have given a
a previous Judgment"
TIL object of the article of the Constitution
and the Section of the Code is to secure a new
tribunal for parties in case they appeal. and il is
evident that they would not have such a tribunal
if n Judge who heard the case upon the law and
facts should, on the appeal, in another Court,
present himself as alone constituting the appel
late Court or on a new trial being granted, having
n,,An Nn,Al Al anna L =
alone.
The case before us has been tried before the
intermediary Court which is a single Justice of
the Supreme Court, and the appeal brought the
case to be tried again on the facts before a Jury
OF twelve men, under the direction of a Justice
of the Supreme Court who happened to be the
same one who sat in intermediary Court. 1t
cannot be said that IN such case the Justice pre-
siding sits alone" The Jury sits on the case
and it determines the facts of the case. under
the instructions of the Judge in relation TO the
law involved.
1t cannot well be claimed that a party who
appeals generally on the facts of his case is en-
titled to say in the trial court that the Jury
should be presided over, and the law to be APP
piled laid down, by n Justice who has not given
an opinion in the lower court as to the facts of
the case. For if the appealing party is
aggrieved by the Judges findings of fact he is
to have a new trial on the facts by the jury, and
if he is aggrieved by the findings of law, he
may appeal to the Supreme Court in Banco,
either directly on the law or through the channel
of a jury trial and exceptions to the directions
of the Judge. So far as the policy is concerned
of having a different Judge sit with a jury on a
case appealed from the Intermediary Court,
it would not be decisive to obtain the opinion of
one judge on the law of a case while sitting as
Intermediary Court, and then, on appeal to OBJ
tain the opinion of another judge while presid-
ing over the jury in the Supreme Court. The
more satisfactory course would be, if the law as
laid down by the Intermediary Court was
thought to be erroneous, to appeal directly on
the point to the Supreme Court in Banco.
The above statutes are also intended to pre-
vent the sitting of the same person alone as
circuit Judge on the appeal of a case from him
self as Police or District Judge, in case he
had been promoted to be Circuit Judge, while
the appeal was pending so also, if a Cir
cult Judge had been elevated to the Supreme
bench, he would be disqualified from sitting
alone on cases which he had previously tried.
The same Judge could not sit alone in n Jury
waived case which had been appealed from him
as Intermediary Court.
We are of opinion that the circumstances of
the case before us are not those contemplated
and forbidden by the Constitution and the
statute referred to.
New trial refused.