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

| OPINION OF THE COURT BY JUDD, c. J.
Both Mr.. Justice Frear OF this
Court, and Judge Whiting of the
Circuit Court First Circuit being
disqualified and Judge Cooper being
also disqualified, having made the ord
er appealed from, on the Sd January,
1894, Cecil Brown Esquire, member
OF the Bar of the Supreme Court, was
authorized by written request of the
remaining members of this Court to
try and determine the case.
An order had been made on the
18th February, 1893, by Mr.. Justice
Frear, while Circuit Judge, approx
ing the accounts of Mr.. w. F. Allen
administrator with the will annexed
of the estate of J. f. o. Banning,
distributing the estate and discharg-
ing the administrator On petition
by the benefciaries under the will of
the testator, Mrs. G. II. Banning, wild.
ow, and B. r. Banning, son, Circuit
Judge Cooper, on the ground that by
the will the trust had not determined.
revoked on July 81, 1898, the order of
discharge, ordered a new account to
be filed and directed that the admin
istrator should credit himself with
the money and securities mentioned
in the receipt given by B. R. Bann-
ing. The petitioners appealed from
this order.
Mr.. Hatch for Allen, Respondent,
moved this Court that the appeal be
dismissed on the ground that no final
order had been made in the Court
below. Mr.. Hatch, for the motion,
contended that as the petition asked
for revocation of the order of dis
charge of the administrator on the
ground that it was not justified by
the will, and this WAS granted, the
petitioner, being the prevailing party
has no ground of appeal. The
direction to the administrator as to
the future accounting was merely an
intimation as to what view the Court
would take of the B. R. Banning re-
ceipt. This part of the order was in
terlocutory. When the account is
made and an order passing upon it
made, it will be final SO far as that
account is concerned and it will be
appeslable.
Messrs. Hartwell and Kinney, per
cOntrG,-If this Court shall hold that
the part Of the Judge Cooper's order
allowing Mr.. Allen to credit himself
with the amount of the securities in
the receipt in question is Obiter dictum,
we are safe. 1t is not likely that
Judge Cooper will change his
opinion. The order made was final.
A general appeal was taken and we
select and ask to be heard upon that
portion of the order which is adverse
to US. Unless we had taken this
course we might finally lose our
appeal on this question by reason of
its being held to be res Gdjudtcata
when brought up again.
By the Court:
By repeated decisions of this
Court decided in July 1898, Provisio-
nal Government VS.. W. G.. Smith;
Provisional Government vs.. All In;
Brown vs.. Carvalho; Provisional
Government VS.. G. A. Herring and
Provisional Government vs.. Ii. F.
Poor, We have held that final dis
position of the cause must be made
before it is appealable. In this case
the order Of Judge Cooper was not
final. The instruction given to the
administrator as to the way his
account should be made expressed
the then view of the Court on
question involved, but the account
was not before the Court and there
was no order made approving or dis
allowing it or any items in it. With
this in view we do not consider that
the order in this respect could be
held to be res adjadicdta when the
account shall be made and finally
passed upon and brought up here on
appeal.
We do not consider the order to be
final and therefore dismiss the appeal
without prejudice to the appellants.
A. S. Hartwell and W. A. Kinney
for appellants; F. NJ. Hatch for res
pendent.
Honolulu, January 3, 1894.