The Hawaiian gazette., 1896-08-07

guishable in principle from the present
case.
Other portions OF the same statute
relating to appeals from "all decis-
ions" of District Magistrates and ex-
ceptions to amy opinion, direction, in
struction, ruling or order of the pre-
siding Judge of Circuit Court Iii a
law case, are equally general with the
norton under consideration. And yet
in constituting each of these portions
the Court has held repeatedly that an
appeal or exception cannot be brought
directly to this Court from an inter-
locutory decision. In some OF these
cases the precise question was whether
n decision overruling demurrer could
be brought up on appeal or exceptions.
Brown V. Carvalho, 9 Haw. $780, from
A District Magistrate: 4rov. Govt V.
Herring. Id. 1877, and The Queen v.
Poor H. 21S, from a Circuit Court.
And even in chamber cases the general
rule against allowing appeals from IN
terlocutory decisions has been applied,
though not in a case where demurrer
was overruled. Bankruptcy OF Gouvela,
q Haw. 253; Estate of Banning, HaW'
357, $50.
II is true that in some cases appeals
have been entertained from decisions
oyerruling demurrers in equity; put
as was said of similar practice IN Id"
!, cases in Prov. Govt V. Herring, supra,
this was with the consent or the APP
pellee. or the matter was unnouceu Dy
: the Court. Similar appeals have Deen
entertained also by courts elsewhere
/ inadvertently or because no objection
was made, and yet the decisions on
such appeals have been held binding
2 on the parties, although the appeals
0 strictly speaking were not allowable
: under the statute Washington Bridge
I Co. V. Stewart, How. U. S. 41S.
: The rule against allowing appeals
It from interlocutory decisions seems tC
e be a general rule applicable to boil
chamber and law cases, and not con
e fined to Code States. See Enc. OF II
, & Pr. Sc, 81, g. ia. In Kirchner
Wood. 4S Mich. 1879, decision over
ct ruling a demurrer to bill In eqult
:; was held not appealable. Afterward
il a statute was passed allowing an appea
f. from decision overruling genera
ia demurrer. Taylor V. Taylor 81 Mich
81.
d. The fact that demurrer may go |
as the equities of the whole bill is not
ne itself sufficient to make decision over
ruling it final. 1t is difficult, perhaI
impossible, to define accurately wnat
or what is not a final decision for IN
IL purpose of appeal A final decislo
pit for this purpose is not necessarily
nd every instance the last" decision
It's a case. The effect of decision wou
seem to be a better test OF its hnanl
than the stage at which it was rende
ed. Barry V. Briggs, % Mich. POI. Al
ne so where a demurrer is sustained, eve
though to d part only of the BILL q
decision may be final so far as 1t goe
But where. as here, the demurrer
oyerruled. no substantial rights a
finally concluded. If the defendant
upon the overruling of their demurrt
ii had elected to stand upon their d
murrer, and had refused to answ'
and a decree had been entered for t
plaintiff upon the bill taken as co
.or fessed, it would clearly have been fin
and appealable. See Enc. of Pl. & P
lis, 116.
Where a demurrer has been enron
ously overruled it may be, as urged
counsel, a hardship to the defenda
not to allow him to appeal at once,
he might thereby be saved the trout
bill and expense of answering and tryl
OF the case upon the facts. On the 9th
hand, if the demurrer has been right
ON overruled, it might be hardship TO [
the plaintiff to allow an appeal at once,
he might thereby be put to great
ins unnecessary trouble, expense and deli
nm And whether the demurrer was r1ght
Sed or enormously overTuled could not
ascertained until after the appeal b
been heard. So as to any other int
locutory ruling. And if appeals We
allowed from all such rulings, 1t wol
be in the power of defendant, even
a very clear case against him, to Ike
oV- the case oscillating between the orr
Tor nal and appellate courts almost ind'
an nitely to the great expense and annt
on ance and perhaps even practical den
to of justice to the plaintiff, to say nothi
MS of the annoyance to the courts and
nd occupation of their time with triv
IRA matters. There are weighty reasons
as both sides of the question, but as
nph tween appeals from all decisions q
1or appeals from final decisions only, cou
SON elsewhere have come to the conclus
the almost unanimously that appeals sho
an be allowed from final decisions or
ess- This is matter of statutory regu
re- ton. Our statute is such that we c.
cor not discriminate between interlocut
uch decisions so as to allow appeals on
It's portant occasions and not on other
een casions Provision for exercising 81
inst discrimination is provided in our ST
the ute relating to exceptions in Giro
and Court law cases, by authorizing
presiding Judge in his discretion to
bill serve questions for the decision of
lder Supreme Court 1t would seem de
par able that a similar statute be passed
ties chamber cases, as has been done
inn some of the United States. Under s
and a statute the Circuit Judge could el
med else a proper discrimination in the
e to terests OF all parties. The very cas-
tiffs bar is foTcible example of one
which an appeal should be allowed
ourt der such a statute. This is appar
nine from glance at the bill and demur
that which are set forth in substance abb
nal: 1t may be added that, although in
a fr,f.~ r,.rfe liz