The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-06-26

There was no order or decree made
denying probate of the alleged will.
When the case came on 10 be heard
| before us, it appeared that Mr.. Kinney
had been consulted and had prepared
and sent from Honolulu to the Circuit
Court an Appeal to the Supreme
Court" from the decision, judgment,
above cause by the Honorable J. w.
Kalua, Circuit Judge of the Circuit
Court aforesaid on the 18th day of De-
cember, a d. 1894, by which the will
aforesaid was refused probate. This
appeal is taken upon all issues Of law
and fact involved in said cause and
upon all findings of law and fact made
by the said Judge in said Court"
1t now appearing that no order re-
fusing probate had been made by the
Circuit Judge, Mr.. Kinney, for the
prOponent, asks leave to withdraw
her appeal herein without prejudice.
This leads US to consider what the
law is in reference to appeals in pro-
bate. The original jurisdiction in
probate is in a Circuit Judge at
Chambers. Chap. 100 of the Laws of
1892 (p. 312). amends Sec. 50 of the Act
to Reorganize the Judiciary Depart
ment, and prescribes that "Appeals
shall be allowed from all decisions,
judgments, orders or DEGREES of Circuit
Judges in Chambers to the Supreme
Court, ercept IN cases IN 1Ch1ch the
app Ha1at IS entitled TO q j1tTy,' etc.
and it further provides that where an
appeal is taken from certain Circuit
Judge at Chambers to be tried before
jury another Circuit Judge shall pre-
side at the trial. Section 20 of the
Judiciary Act prescribes that appeals
from a Circuit Judge at Chambers
shall be heard by the Supreme Court
on the record and no new evidence
shall be introduced, unless it is clearly
newly discovered and material to the
just decision of the appeal. Now by
the Act of 1864, Compiled Laws, p.
1894, an appeal is allowed to the jury
from an order Of 81 Judge in probate
on the validity OF any will or Tesla
mentary devise, or any facts touching
the descent of property, ETC., if the
property involved exceeds the value |
of S500-as in this case. The "appeal "
under consideration being of this !
entities the appellant to a
jury, and therefore comes within the |!
exception in Chap. 100, Laws of 1892, |
and this Court would not be author |
lied to hear it. If the proponent |
wishes to have the case retired upon |
the facts, we know of no way by |
w ulCn III Gail DS IOu0 GACGpJ ny OD-
pealing to the Circuit Court of the !
Circuit where the cauae arose, at term,
where if moved for by prepayment a |
jury would hear it, presided over by
Judge of some other Circuit. Errors
of law made at the trial could then !
come to this Court by exception.
" Exceptions are only applicable to
term cases. The Bill of Exceptions to
this Court allowed by the Circuit
Judge in this case would not permit
us to hear the case anew upon the |
facts. The time within which an ap-
peal may be taken from a Judge at !
Chambers begins to run from the
order or decree made. Mulch V. Holau,
Haw., 314. Tn Wo Sang Co. V. Alo,
Haw., 675.
There being no order made in this
case, we find no difficulty in allowing
he sO-called "Appeal' to be with
lrawn without prejudice, and as the
papers in the cause are here we order
hem sent back to the Circuit Judge
second Circuit at Chambers with a
direction to make an order in COM
)liance with his decision, and to allow
he prepayment to take such further pro-
.eedings as shall be deemed proper.
w. A. Kinney for prepayment; J. K.
for contestants.
Dated Honolulu, June 20, 1895.