The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-02-23
OPINION OF THE COURT BY JUDD, CD,

OPINION OF THE COURT BY JUDD, CD
On the 29th December last, wher
this appeal was brought on fol
hearing, objection was made by ap
pellant's counsel to Mr.. Justice
Frear's sitting, on the ground that
he would, on this appeal, have tc
pass upon the effect of his OWL EVIL
dence before Judge Cooper of the
Circuit Court, as to the understand
ing of the appellant of the securi,
ties alleged to have been accepted
by him in the distribution of the
property of the estate of J. f. .,
Banning. On this ground we held
that Mr.. Justice Frear was disqual-
fled to hear this case. Other grounds
of objection were made, first, that
Judge Frear had granted the order
while Circuit Court, discharg-
ing Mr.. W. F. Allen, admins
traitor of the estate in question,
under a misapprehension of the
true meaning and intent of the
will of said J. F. 0. Banning. We
did not consider Judge Frear dis
qualified on this ground. He had
heard the case as Circuit Judge,
but the Act to reorganize the Judi
ciary Department does not contain
any provision making this fact
disqualification. Nor does the fact
that appeals and exceptions from
decisions and rulings rendered by
a Justice of the Supreme Court
before the Act went into effect, and
while he had niSi prius jurisdiction,
are brought up for hearing before
the Supreme Bench, disqualify the
Justice whose decision is appealed
from, and prevent him from sit
ting. From necessity during the
transition of this Court from one
whose members held niSi pri,tS jur-
isdiction to a Court of purely ap-
pellate Jurisdiction there must be
some cases where one of the mem
bers of the Appellate Court had
heard and decided the case in the
first instance. And although this
may be within the spirit of the Act
it is not within its letter and there
is no provision disqualifying JUS
tice under such circumstances.
Mr.. Justice Frear being held to
be disqualified, Judge whiting of
the Circuit Court, First Circuit,
was asked on the Sd January, 1894,
to sit in the case. On Judge Whit
ing's suggesting on taking the
bench that he was disqualified by
reason of having chad connection
with this cause" a preliminary
question arose as to what tribunal
should decide upon the competency
of one of its members, and we held
that the remaining members of the
Court is the only Court competent
to decide whether the third member
is disqualified or not.
An Act to re-organize the Judic-
larry Department, Section Sc, pro-
vides that in the event of the dis
qualification of a Justice of the
Supreme Court on the grounds
given, "his place for the trial and
determination of said cause shall
be filled by one of the Circuit
Judges acho has had no connection
qcith the said cause, either as coun-
sci or in his official capacity, or by
any competent and disinterested
member of the Bar of the Supreme
Court thereunto authorized by the
written request of the remaining
Justices"
We hold that the connection
with the cause" by the Circuit
Judge in his official capacity re-
ferred to, means that to disqualify
him he must have passed upon the
issue or issues of law or fact which
are raised by the appeal. That
having ruled upon collateral mat
tiers not involved in the appeal
would not disqualify him. For
instance, if the Circuit Judge had
admitted a certain will to probate
and the decision appealed from
was the allowance of the executors
accounts by another Circuit Judge,
he would not be disqualified. The
estate in probate is not the cause"
The "cause" meant in the statute is
the exact case or issue brought to
the Supreme Court by the appeal.
But it appears that Judge Whiting
had as Circuit Judge presiding at
the August term, 1898, of the Cir
cult Court declined TO allow this
appeal to be tried by a jury on the