The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1898-04-21
IN THE SUPREME COURT OF TIE HAWAIIAN
ISLANDS,
IN THE MATTER OF THE ESTATE OF JOSEPH
LAZARUS, deceased.
Exceptions FROM CIRCUIT CoURr, FIRST CIRCUIT
DECEMBER TERN. 1897.


EXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT
SUBMITTED DECEMBER p, 1897 DECIDED April - 1898
JUDD CD, FREAR AND WHITING, JJ
Section g. Ch 81 Laws 1892 as amended by Oh 100 Laws of 1892
which appellant a
Judge chambers the
further within the filing
order appealed from, applies when
Circuit Court well when taken
OPINION OF THE COURT BY FRBAR. J.
On the 9th of August Judge Perry the First Circuit
alleged will of the deceden Joseph Lazarus appoint
ing Three days contestants
noted appeal from that order the Circuit Court but did
not pay the costs accrued or e bond for further costs within
ten days after the order appealed from Afterwards upon
motion of the in the Circuit Court Judge Hitchcock
the Third and Fourth Circuits presiding in this in the
First Circuit both Circuit Judges Of this Circuit being dqua
fed dismissed the contestants appeal ground
said costs had not been paid the said bond filed within the
said time The comes here contestants exception
this ruling.
The question statute Ch 1O9 Laws of 1922
requiring such costs be paid and bond to be filed within
ten days appeal from order of Circuit Judge cham
ber applies such appeal when taken the Circuit Court
well as when taken to the Supreme Court.
Before 1864, appeal allowed from order of Judge
in chambers to court sitting with Jury In that wear an Act
passed providing for such appeal in certain probate
certain issues of fact but without specifying the time
within which the appeal should be noted containing any
provision bond By Rule the Supreme Court
however, the appellant in such required to his
appeal pay the accrued and file bond in the of
from This Rule superseded by the Act Reorganize
the Judiciary Department, Oh 81 Laws of 1892, which pro-
vided, among other things follows:
Section 60 Appeals shall be allowed from all DECISIONS
judgments orders DEGREES of Circuit Judges Chambers
the Circuit Court and, if solely points of law the
Supreme Court and of Justices of the Supreme Court Cham
ber the Supreme Court whenever the party appealing shall
file notice of his appeal within five days and shall pay the
accrued and deposit sufficient bond in the of fifty dollars
conditioned for the payment of the costs further
he is defeated in the Appellate Court money the
within days after the fling of the decision,
judgment, order decree appealed FROM
This section amended the of the Legs
atme by Act 100, SO o read follows:
Section So Appeals shall be allowed all decisions
Judgments orders Judges Chambers
Supreme Court except cases in which the appellant is
entitled appeal jury party appealing
file notice of his appeal within five days. and shall pay the
costs accrued, and deposit sufficient bond in the of fifty
dollars, conditioned for the payment
case he is defeated in the Appellate Court money
the within ten days after the filing of the decision
Judgment order decree appealed FROM provided however
that in any in which the law allows appeal
decision Judgment order decree of Judge in Chambers
be tried before jury, the Judge whose decison Judgment
order or decree appealed from shall not preside the trial
OF such appeal before jury but such appeal shall be in order
Tor nearing at the next regular term OF the Circuit Court OF the
Circuit IN which the cause was tried in Chambers and the Cir
cult Judge of some other Circuit who shall be thereto authorized
by the written request the Chief Justice Justice
the supreme Court shall preside at the trial OF such appeal;
but further provided that such appeal shall be taken
from the decision Judgment order decree of one of the Judges
of the First Circuit Chambers it shall be order for hearing
the regular of such Circuit but the Judge whose
decision Judgment order decree appealed from shall
preside the trial o. such appeal
Section 50 originally passed clearly made the provisions
and bonds applicable appeals the Circuit Courts
we'll appeals to the Supreme Court Was this changed
in the Section ; amended?
First what intention of Legislature! o.
general principles and considering the whole history of gisa-
ton respecting appeals in this country it likely that the
Legislature would intend to allow appeal without any provi
sion the time within which the appeal should be
taken perfected o. In the original Section passed the
session. the Legislature showed beyond doubt intention
that the provisions and bond should apply appeals
the Circuit Courts (3) There nothing in the amended
Section showing intention change the law in this respect
On the contrary the amendment may be fully accounted for
other intentions, and particularly upon the intention
to allow general appeals not merely appeals points of law
most chamber the Supreme Court The original
Section shown by the following Section CO. and other pro
visions evidently had not expressed the intention of the Leg
atuTe appeals the Supreme Court "a In the amended
Section the words Appelate Court
aDd in T1To