The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1899-05-10
OPINION OF THE COURT BY FREAR, j.

Petitioner applied for writ of mandamus compel respond
ent to grant Hawaiian register for the ship Star of France
Which alleged in the petition be upon the high and
bound for the of Honolulu An alternative issued
directing respondent the register show the
contrary Respondent answered alleging among other things
that the ship the high and had yet arrived
the port of Honolulu Petitioner moved quah the
for insufcency among other This motion
ruled on the ground that respondent could not be required
grant register until the vessel arrived Petitioner appealed
but Withdrew his appeal and moved be allowed
without prejudice his right bring action which
ton allowed Respondent moved reopen the
dscontnuance the ground that he had been present
represented when allowed his counsel not having received
the notice of the date hearing The motion for dscontn-
reopened and this and motion made by respondent
final decree dsnssin the writ were heard together The
former allowed, the latter denied. Respondent appealed
from both rulings.
If it had appeared from the allegations of the alone
that petitioner entitled peremptory the
funS OF ms motion to qus the answer would clearly be inter
ocuoy and would entte respondent final Decree for
petitioner would then be entitled the allegations
the answer In such doubtless the judge might properly
allow dconnuance that stage of the But in the
from the allegations of the petition itself
that the petitioner entitled the not
therefore, make issue of fact He could deny the truth
of the remaining allegations of the awer and go trial
them, for the single allegation that the ship the high
had been held sufficient bar, and he could deny the
truth of that for he had himself made the allegation his
petition. The decision overrulng the motion quash
was is true, nterlocutory a certain 1t
interocuory form But really disposed of the whole
The decision was in effect that on the undsputed facts the writ
ought be issued. The petitioner could discontinue
of right that Whether the judge in his discretion
might properly allow dconnuance is clear. On the
dsconinance granted the petitioner decree of dis
mia granted the respondent For in either the petit
toner might file another petition when the ship arrived and
perhaps respondent could be said be
diced by the allowance of dconnuance But the other
hand he had acquired right by the submission of what
held to be crucial question the and by the actual dec
ion of that question in his favor and decree of dismissal would
least prevent the bringing of second suit before the ship
should The also provides Civ. L. Sec. 161O)
IF the day assigned for answering the order the party
whom directed and shows sufficient jus
H his conduct the complaint shall be dismissed and the pet
shall occasoned by the appcation On
the whole the opinion that the motion for dsconn
should have been dalowed and the motion for decree
dismissing the complaint allowed.
The orders appealed from reversed and the RENTED
the circuit Judge for such further action be proper
accordance with the foregoing views.
Kinney, Ba1ou d McClandhan for petitioner
4ttorney-Generul H. E. Cooper for respondent.