The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-02-15

/ hear and determine said motion eX
! parte he could properly have denir.:
| the same, aud sue denial would not
/ have been appealabie.
/ 3. That upon the facts set forth III
the records herein said Circuit Judge
ought not to have entertained said
motion, and ought neither to have
arauJed nor refused the game
4. That according TO the usual ana
! proper practice in equity 10 order or
'iecree Is signed by the Judge upon
/ his declining to entertain or either TO
grant or 10 refuse a motion male uil-
der the circumstances herein SHOWN.
3. That if said motion had been
denied no appeal would have lain
| from such denial, the same not being
of final nature, and also as well ne
cause the granting or denying OF said
motion would have been en- rely dis
cretiOnary with the Court.
| 6. That the opinion of said Circuit
Judge upon the questions raised by
said motion is fully aud clearly set
| forth in the clerk minutes, and that
| if the petitioner is lawfully entitled
| to appeal therefrOm there is no statute
or rule of practice requiring such
! opinion to be signed by such Judge.
| Wherefore this respondent sub mits
| that the writ as prayed for should not
issue, and he brings into Court here
the writ herein issued, and refers 20
| all the records herein fled To snow his
doiDgs i'll the premises"
| The precise act which the petitioner
asks that the respondent be requiIei to
| do is % sign an Or.er declining 10 en-.
| terrain a motion made by the petition
er to suspend further proceedings IN
| the cause of the Hawaiian CONNER
cial and Sugar Company Ga foreign
l~Sa ht.o in
islands) V. Claus Spreckels in the Cir
cult Court, First Circuit of the Ha-
Waiian Islands aud TO continue the
same until called up by motion of
either party, without prejudice to the
right of defendant to answer when so
called up; and that the time to an
swer be extended forthwith until
this motion can be disposed of.
It was made to appear 20 the Cir
cult Judge that the Hawaiian Com
m+rcial and Sugar Company, it's Off
Gers. servants, agents, attorneys, en-
pIoyes, &c, had been enjoined by the
Superior Court of the city AND county of
San Francisco IN the State of CalifOr-
MIA, L ) A. "frOm further maintain
ing, prosecuting or proceeding with
or in" the action in the Circuit Court
here. The Circuit Judge respondent
stated orally that he declined to en-
terrain the motion because so long as
the Hawaiian Commercial and sugar
Company was prohibited by an in
junction from appearing here, ANY
motion requiring action on lis part
should not be heard while its hands
are tied; and he therefore further eX-
tended the time in which the then
defendant should answer 10 day Ger
tain.
Counsel for Claus Spreckels con
tends that this "Order" refusing to en-
terrain the motion should be put in
writing and signed by the respondent
ia order that he may be enabled
under the statute and rules to appeal
therefrom to the Supreme Court. And
he admits that if said refusal to enter
tain the motion is not appealable he
would not be entitled to the writ.
Tue status of the case is this
The record shows that ne statutory
time for answer had begun to run
when several orders in succession
were obtained by the then defendant
granting him further time to answer.
These orders were made before the in
junction of the California Court, at
the hearings of which counsel for the
Hawaiian Commercial and Sugar
Company appeared. At the hearing |
under discussion such counsel appear
ed specially for the purpose of waiv- |
ing no rights by nOn-appearance aud |
not deemed to be violation of the |
showed to the Court that |
the granting of the motion Ito sus- |
pend prOceedings) would be dispOsIng
of the plaintiffs rights without an |
opportunity being given to it to be |
heard, the defendant having obtained |
an injunction in foreign Court pre-
Guided the plaintiff from further pro
ceeding herein
1t would certainly be improper for
the Court to make any such order,
ing the other ride and would not be |
to decide it ex parte. 1t
was therefore improper to entertain
it at all, and we understand that this
Is all that was done. We hold that
according to the practice and pre-
,edents of the courts of record of this
refusals to entertain motions
Of this character are. noted by the
clerk on the record and need not be
'edueed to writing and signed by the
Judge.
Secondly, the refusal to grant sus-
pension of proceedings is interlOcutory
natter not decisive OF the merits of
he case, and by numerous decisions
If this Court is not appealable, see 9th
5aw. PIP. 164, 178, $50, 1S7, 21S, 357.
01.
Thirdly, it was discretionary with
he Ciicuit Judge to grant or refuse
he motion for the suspension of pro
eeding and this discretion having
'een exercised in this case, by looking
nto the grounds of it and declining to
the motion, which was
ritual refusal of the motion itself
will not lie to compel the
Judge to sign such an order. IA Eng. 1
: Am. Encyc. Law, PIP. la, 125,
tile Mandamus and cases cited.
We find that the respondent has
hown sufficient reasons to justify
lis conduct, and therefore dismiss the
ompIaint.
w A. Kinney for. petitioner; l.. A. {
'hurstou for respondent.
Honolulu, February l, 1896.