The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1900-01-06

then passed presumably Judge Kauo disqualified
from having already rendered a decision
At the June said Second Circuit Court
" 1895" before SaA.y. moved ON and
sA j. NJ kaneaku, F, appearing for petitioner moved dismiss
the appeal claiming that plaintiff counsel had right to allow
appeal after the date for taking pcrectng the appeal had
IN elapsed The counsel for appellant filed affidavit
ha Of > ChgHorth. Esq the attorney for petitioner The
then ruled that notice appeal filed with
in the time required by and that could
dis puac waive the time Of appeal after had elapsed and dis
am missed the appeal
'n' The affidavit of 5. f. Chlmgworth as follows:
And comes s. F. Chiingworth and being first duly
sui worn dpo-es and that he all times and
w attorney for koba Kamaaa the petitioner the above entitled
MAI 'he same came on to be heard before the Honorable
vii John W. Kalua Judge Of the Circuit during
Of April 1895 and that decree signed by Judge
30 hed on Pn 70 1898 by which the said petitioner deceed
one OF the hers OF the said kamaaa dee aed ntestate. And
eponent further says that Geo. Hons ESQ., the attorney
Mary hanoho Brown, the the entitled
iv represented deponen 2Sth day April 1885,
VA that Kepo ESQ., the attorneys
all then temporarily Honolulu Oahu that he the said Geo.
Hons wished communicate and consult with the said A. n.
no esant wished TO take from the decision and decree Of the said
court but that he the said Geo Hons able
ceve any reply from the said A. Kepoka Esq., Wedne
day the 4h day of May 1898 being day than the time
hi allowed by statute file notice of said appeal and deponent
pr further states that verbal agreement then and there entered
into between the said deponent representing the said petitioner
and the said Geo Hons representing the said contestant that
the said notice of appeal fled after the statutory time had
elapsed should have the force and effect if filed within the
lme required by law.
The appeal taken day late Estate Of Lazarus,
~ II Haw 49, and the dismissal of the appeal stand unless
2 The waiver by counsel binds the petitioner.
In SpoOHer Rice Haw 427 the says Cous else
where differ whether the statutory requirements relating
appeals may be waived Whichever may be the better opinion
ID principle it be regarded settled in this jurisdiction
that such requirements of the kind question may be
~ waived The of the failure deposit
Of cash file bond for and bond against dispo
g ing of property
Coleman Coleman IIaw 800 the court held that
sci had the right make the waiver Accrued
paid after the days perecng the appeal had
II cbucEu 3 IIaw. G42.
lie The affidavit Of S. +. Chingworth which Is mdsputed
In shows oral agreement stipulation Of counsel amounting to
- an Of time and also waiver of the failure enter
n The appeal within the statutory PERIOD and that the agreement
was made on the av Of decree and before contestant lost
n any right 0ppGI and that this stipulation afterwards
m duced writing and filed Further the waiver made in
open the December term and only the succeeding
em 1892 any objection raised by petitioner If the
h case had proceeded trial the December he certainly
would be allowed raise the objection after decision
Z the merits had been arrived at.
Under these special circumstances the party bound by the
agreement and take advantage of the
of his counsel which caused the delay in filing the appeal
But do go far say that counsel could bind his
client without his consent ratification by waiver made after
the time for taking the appeal had elapsed there being prior
agreement stipulation such in the present
The order appealed from dsmng the appeal the Second
Circuit Court is reversed and the is ordered renaed in
n said court.
! Exceptions sustained
s. f. ChiHingvorth and j. ". Kaueakua for petitioner.
Geo. Hons and A. N. Kepoikai for contestant