The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1896-02-14
( p.rts affecting the plaiatif's In

.. That II said Sircuit Judge had
any right or authority 10 entertain,
hear aud determiue said motion ex
psrte he could properly have denied
I the same, and sucn denial would not
/ have been appsslab,e.
! That upon the facts set forth IN
Z The records herein said Circuit Judge
/ ought not TO have entertained said
morton, aud ought neither 10 have
granted nor refused the same.
l. That according 10 The usual anu
proper practice in equity 20 order or
decree Is s'gued by the Judge upon
I his declining TO entertain or either TO
grsut or 10 refuse = motion made un-
/ der the circumstances herein shown.
5. That 10 said motion had been
denied no appeal would have lain
from such denial, the same not being
/ of y final nature, aud also rs well be-
cause the granting or denying OF said
motion would have been en>isely dis
cretiousry with the Court.
s. That tue opinion Of said Circuit
Judge upon the questions raised by
said motion is fully and clearly set
forth in the clerks minutes, and that
II the petitioner Is lawfully entitled
t. appeal therefrom there is no statute
or rule OF practice requiring such
opinion To be signed by suca Judge.
Wherefore this respondent submits
that the writ a. prayed for should not
i>sue, and ne brings into Court here
The writ herein issued, aud refers TO
all the records herein fied To show hts
uoiDgs ia the premises"
The precise act which the petitioner
asks tina, the responde at be required To
10 is % slgu an or er declining TO en-
trrtSin motion made 10y the petition
er II suspend further proct ceilings in
the cause of the Hawaiian CONNER
ciai aud Sugar Company Ia foreign
corporation doing business in these
isiaudsl V. Claus Spreckels in the Cir
cult Court, First Circuit of the Ha-
wsiisn Islands aud To continue the
same uutit called up by motion of
either party, without prejudice TO the
right of defendant TO answer when so
called up; aud that the time TO an
swer be extended forthwith until
this motion eau be disposed of.
II wss made TO appear TO the CIR
cult Judge that the Hawaiian Com
M rcisl and Sugar Company, its OH
GERS. servants, agents, attorneys, EN-
ploye>, Sc, had beeu eujOiued by the
Superior Court of the city and county OF
San Francisco IN the State of Csiifor-
uis, L 5 A. from further maintain
lug, prosecuting or proceeding with
or in thu action in the Circuit Court
here. The Circuit Judge respoudentl
stated orally that he declined To en-
terrain tue motion because SO long a.
the Hawaiian Commercial and sugar
Compsny WAS prohibited by an in
junction from appearing here, any
motion requiring action on It's part
should not tie heard while its hands
are tied and he therefore further ex-
tended the time in which the theu
defendant should answer 10 day Ger
tain.
Counsel for Claus Spreckels con-
tends that thus .'order" refusing to en-
terrain the motion should be put in
writing anu signed by the respondent
in order that he may be enabled
under the statute and rules to appeal
therefrom 10 the Supreme Court. Aud
be admits that II said refusal TO enter
tain the motion IL not appealable he
would not be entitled to the writ.
The status of the case is this
time for answer had begun to run |
when sever al orders ia succession |
were obtsIned by the then defendant
granting him further time to answer
Tnese orders were made oefor4 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 wsiv-
lug no rights by non appearance and
protesting that this appearance oe
not deemed to be violation of the |
injunction, showed to the Court that
the granting of the motion Ito Gus
pend proce ediDgsl would De dispOsIng |
OF the plaintiffs rights without an
opportuuIy being gIven to it to De
heard, the defendant having untaine
al li,juuc iOl IL q foreign G. .urt pre-
ude1 the plainiiff from further pro
ceeding herein
II would certainly De improper for /
the Court 70 make auy such order,
Subscribing prtp ceilings, without hear 1
ing the other Tide auu would not be 1
authorized To decide it ex parte. 1t
wss therefore improp 10 enter tain
it at all, aud We understand that this
is all that wa Done. We hold that
ascending 70 the practice aud pre-
ee1rnts of the courts of record of this
refusals to entertain motions
Of this character are noted 10y the
clerk on the record and need not be
reduced to writing aud signed by the
Judge.
Secondly, the refusal to grant sus-
pension of proceeding is interlocutory
hot decisive OF the merits of
the case, aud by numerous decisions
Of this Court is not appeslaole, see 9Th
Haw. PIP. l64, LIS, $50, ISL, 2ls, 357.
i01.
Thirdly, it was discretionary with
the Ciicuit Judge to grant or refuse
the motion for the suspension of pro
seeding aud this discretion having
been exercised in this case, by looking
into the grounds of il and declining to
the motion, which Was q
virtual refusal OF the motion itself
will not lie TO compel the
Judge to sign such an order. IA Eng.
L Am. Encyc. Law, PIP. ia, 12S,
title Mandamus and cases cited.
We find that the respondent has
shown sufficient reasons to justify
n n Il = q L.