The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-08-07

though TO a part only of the bill, the
| decision may be final so far as it goes.
/ But where, as here, the demurrer is
/ overruled, no substantial rights are
| finally concluded. If the defendants,
upon the overruling OF their demurrer,
/ had elected TO stand upon their de-
/ muTTer, and had refused to answer
and a decree had been entered for the
plaintiff upon the bill taken as con-
/ fessed, il would clearly have been final
and appealabIe. See Enc. of Pl. & Pr.
115, 116.
Where a demurrer has been errone-
Ously OYerTuled il may be, as urged by
counsel a hardship 10 the defendant
not 10 allow him to appeal at once, for
he might thereby be saved the trouble
and expense of answering and trying
the case upon the facts. On the other
hand, If the demurrer has been rightly
overruled, il might be a hardship TO the
plaintiff to allow an appeal at once, for
he might thereby be put TO great and
unnecessary trouble, expense and delay.
And whether the demurrer was rightly
or enormously overruled could not be
ascertained until after the appeal had
been heard. So as to any other inter
lOcutory ruling. And if appeals were
allowed from all such rulings, it would |
be in the power of a defendant, even in |
a very clear case against him, to keep |
the case Oscillating between the origi- |
nal and appellate courts almost indefi- |
nitely, to the great expense and annoy |
ance and perhaps even practical denial |
of justice to the plaintiff, to say nothing
of the annoyance to the courts and the |
occupation of their time with trivial
There are Weighty reasons on
both sides of the question, but as be-
tween appeals from all decisions and
appeals from final decisions only courts
elsewhere have come to the conclusion
almost unanimously that appeals should
be allowed from final decisions only.
This is a matter of statutory reguIa-
ton. Our statute is such that we can
not discriminate between interlocutory
decisions so as to allow appeals on inn
portant occasions and not on other oc-
casions. Provision for exercising such
discrimination is provided in our stat
ute relating to exceptions in Circuit
court law cases, by authorizing the
presiding Judge in his discretion to re-
serve questions for the decision of the
Court. 1t would seem desir-
able that a similar statute be passed for
chamber cases, as has been done in
some of the United States Under such
1 statute the Circuit Judge could exer-
Use proper discrimination in the in !
erests of all parties. The very case at +
oar is fOrcible example of one in L
which an appeal should be allowed I'M l
Ter such statute. This is apparent
rom a glance at the bill and demurrer, :
fhlch are set forth in substance above. 4
1t may be added that, although inter f,
or 7,rNf.- |
ectly appealable, no substantial rights
re lost thereby, for all questions which h
light have been raised by such appeals.
allowable, may equally we'll be raised, :,
the proper steps have been taken, on t.
ppeal from the final decree, in so far as r,
ne final decree is affected thereby
Inc word decision" in equity within o.
ne meaning of the statute relating to u
DpeaIs is practically synonymous with f.
Decree" and the appeal should be
lken from the decree, not from the d.
pinion of the Court. In this case no Is
ecree has been entered. See I'm Wo
ang Co. V. Alo, Haw. 673. .,
In regard to costs, the appeal was sC
lowed by the Circuit Judge and, in the G
essence of any showing to the con- pl
airy, 1t is to be presumed that all costs
lat had accrued up to the time of the
peal were paid. We notice also
lat the papers in the case not made "
lrt of the record by the certificate of n
'peal show that the item of SIT. ex- I6
9nses of witness, which is the item
legged not to have been paid, was al tn
wed after the appeal was taken and 10
bsequently the order allowing it was I
voked. This item, we may add, ap- Is
ars to have been properly disallowed
lder the ruling in Ohera V. Alderman. til
Haw. 500, the witness having been "a "a
pending a hearing on de- 10
urrer and before day had been set na
r trial on the facts
The appeal is dismissed without in
ejudice. co
G. F. Little for plaintiffs; Thurston "
Stanley for defendants. "a
July 30. 1896. or