The Hawaiian gazette., 1889-10-01

the evidence, with the result and
effect of it upon the mind of the
Court, and the conclusions of fact
and law to which they lead, which
in this case was that the "plain-
tiffs' bill must be dismissed" Such
a decision or opinion might have
been, and not infrequently is, rem
dered orally. The contention of
the appellant is that this was de-
cree or equivalent to a decree and
a sufficient disposition of the case if
no further decree or decision had
been signed to be pleadable in bar
of another bill setting forth the
matters so decided, and that as
decided case an appeal might be
taken from the decision. 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 pro-
nounced in the decree. The opin-
ion expressed the conclusion that
the bill must be dismissed, the de-
cree orders, adjudges and DEGREES
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
we'll known differences between the
statement of the opinion and legal
reasoning of the Court, and the or
der or decree which is the judy
ment of the Court and an authorita-
tive portion of the record. The
views of the Court thereon have
been set forth in Mutch rs. Holau,
Haw. 314, and the proper prac-
tice prescribed by Rule s, Sec. E.
The appellants counsel miscon-
ceives the effect of that decision
when he says that the time was
extended for the completing of the
appeal so as to date only from the
filing of the decree in order to allow
the appellants case to be heard
against the objection of the appellee
that the appeal was too late. Not
so. The Court determined "that
the proceeding before the Chancel-
lor was not concluded before the
signing of the Decree" and so that
the appellants ten days for appeal
ran from the date of the decree
signed. We hold that the statute
Sec. $50, which gives an appeal
" from any decision, judgment, Or
der or decree made by any Justice
at Chambers" to be taken within
ten days, by Rule four, is to be con-
strued to intend an appeal from the
decree, in cases where by the prac-
tice of courts decree is required
to be made. The term decision
imports nothing else than decree,
judgment or order. With what
ever laXity the word decision may
be used by applying it to opinions
of the Court its meaning in refer
ence to appeal proceedings is synon-
ymous with the other terms with
which it is joined in the statute.
The appeal taken in this case was
therefore taken before the matter
was appealable. But in our opin-
ion it will be allowable to consider
it as made nuac pro tune. 1t was
already on file when the decree was
signed. The Court will grant leave |
to do things nl0ae pro tune to answer
the proposes of justice, but never |
to do injustice. We, upon that
ground, order that the appeal be
ente- ed as of the Goth day of June,
and will hear it upon the merits.
A. S. Hartwell for plaintiffs, APP
peIIants C. L. Carter and P. Neu-
mann for defendants, appellee.
Honolulu, Aug. 90, 1889.