The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-03-12
OPINION OF THE COURT PER
JUDD, c. j.

The Plaintiff brought his action
in the Police Court of Honolulu
where judgment was entered in
favor of Defendant.
He appealed to Justice of the
Supreme Court sitting at Chambers,
where the same judgment was
rendered on the 18th July last.
By the Act of 1886 Chapter LXII)
he has no further appeal on the
facts. He however noted an appeal
on the Goth July to the Supreme
Court, in banco, on the ground that
the decision of the intermediary
Judge was against the law and the
evidence. He paid the costs on the
9th July, and deposited $50 in lieu
of an appeal bond, no certificate of
appeal was filed. The case went on
to the calendar of the Court in
Banco, and Mr.. Peterson counsel
for defendant moved to dismiss the
appeal, as follows:
1st. That this cause has been tried
in the Police Court of Honolulu and
before Mr.. Justice Bickerton sitting
in Chambers, upon the facts, and
judgment in both instances being
for defendant, no further appeal
upon the facts can be allowed.
End. That If this appeal is upon
the law, no points of law have been
stated, and the appeal must be dis
missed.
3rd. That there is no appeal be-
fore this Court, no certificate of
appeal having been signed either
by the Justice or the Clerk. There
is nothing before this Court except
notice of appeal.
We are of opinion that the motion
20 dismiss, must be granted.
In The King VS.. Lee Choy, z
E[awn., p. 62, we held that an ap-
peal from Police or District Court
to the Supreme Court in banco, up
on questions of law, must comprise
a certificate signed by the Justice,
of the points of law upon which the
appeal is taken, failing which the
Court has nothing to consider. This
was affirmed in Humuula Sheep
Station VS.. L. Ahlo, Z Hawn., p.
213.
In Wenner & Co. VS.. Thomas
Lindsay, Hawn., p. 119, we held
that the certificate of appeal from a
Justice of the Supreme Court should
be signed by the Justice, and should
state whether the appeal is to the
Supreme Court in banco on points
of law, or an appeal for trial on the
facts. This decision also lays down
that when the decision appealed
from is written, and the appeal is
taken on points of law therein stat
ed or decided, the points of law
need not be rewritten lin the certi-
ficate of appeaD. If the decision be
oral, the points of law appealed
from should be reduced to writing
by the appellant, signed by the
Justice and appended to the certi'
f1cate of appeal.
These decisions should settle the
practice and are as authoritative al
if made Rule of Court. We do mo-
say that an appeal cannot be taker
on the question of law whether the
evidence sustains the decision, bu
this point of law must be sent W
by the Justice who heard the case
and would have to embrace the
evidence.
The appellate Court in banco il
such ease, would not be authorized
TO try the case de noUo on the facts
but only to examine the evidenc,
SO far as to see if there was sufficIen
to sustain the judgment appealed
from. A failure to present such
certificate to the Justice for sigma
ture within ten days of the judg
ment is too late. In this case it wa
presented on the 9th August. Sucl
II certificate is part of the appes
and must be presented within tn
ten days.
Appeal dismissed.
A. S. Hartwell for plaintiff.
A. P. Peterson for defendant.
Honolulu, Feb. %, 1892.