The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-01-25
IMP ORTANT
DECISION
First Circuit Judge Is
Scored Severely.
JUSTICE FRtAR's VIEWS
Because Attorney Is not Ready To
Proceed, Action Should Not
Be Dismissed.

rHIEF JUSTICE FREAR believes in
giving the parties to suit ample
notice and opportunity for the pres
of their cases. and that a Judge
not doing so abuses the discretionary
powers of his office. He and the Justices
of the Supreme Court concur in stating
that a Judge should not arbitrarily dis
miss an action because the attorneys are
Judge calls a case out of docket in
which there are dozen more Yester-
day the Supreme Court filed a decision
in the case of John Bell VS.. Palea, which
was brought before it on exceptions from
the Circuit Court. The First Circuit
Judge is handled without gloves in the
opinion, and the concurring statements
of the Associate Justices.
The case in question is one which has
a peculiar history in its relations with
the Circuit Court, and the manner winch
the presiding Judge of that court en-
pioys in dIsmisSlng cases from the dock
et. According to the narrative of the
Chief Justice, the case was one which was
on the August, 1853, term of court, but
was not reached, and did not come up
a gain until the August term of 1900. 1t
was begun in the District Court of Koo-
laupcko, Oahu, and taken by defendants
appeal, jury waved, to the Circuit Court
in June, 1889. 1t will be remembered that
in the August, 1900, term the jury-wa.ved
cases were taken up first, contrary to
custom. On August 6, at 2 p. m, the
case was set for trial on August at
the same hour. About ten other cases
that preceded it We're set for the same
day. AT about IL a. m. on the 7th, or
nearly three hours before the time set,
the case was called and counsel for the
plaintiff was asked ii he was ready to
He replied that he was not ready as
he had not supposed the case would be
called SO soon, but would be ready on
the following morning. Counsel for the
defendant was then asked if he was rea-
dy to proceed. He replied that he had
that the case had been set for
the Sth inst, at which time he would be
ready, but that he was not ready to pro-
coed Immediately. Neither counsel had
asked for continuance before. Both
now desired a continuance until the fol
lowing day, but the Court Of It's own mo.
ton dismissed the appeal, and defendant
excepted on the ground that the order
was contrary to law and an abuse o.
discretion.
On the Sth inst the defendant moved
the Court to vacate the order diSmiSSint
the appeal and to reinstate the case OIL
the calendar, A. G. M. Robertson setting
forth the facts above stated, and alst
that on the It'll, he was in attendance
prepared to try another case which ha'
been set for trial before another Judg
lof the same court on the same day; tina
1.-The defendant and his witnesses reside'
lat Heeia, Oahu, and that affiant was ia
miliar with the facts and circumstance
of the case, and the law applicable there
to, and that in his opinion the defend
ant had a complete defense to tue actlo
on its merits, and that the dismissal o
the appeal would work an injustice t
him.
Plaintiffs counsel Joined in requesting
the Court to vacate the order dismissini
the appeal and to reinstate the case. TIL
motion was denied. Motions to file add
tional affidavits as to the cases merito
rious defense We're also denied. The Chic
Justice says there seems to be a differ
ence of opinion as to whether the dis
m:ssal of an appeal or its reinstatement
| is a matter of discretion, to be reverse
only in case of an abuse of discretion, o
a matter of strict law. to be reverse
upon error in law being shown. In NeV
Jersey it is held to be a matter of lay
and not of discretion.
IF the present case belonged to tn
discretion class, there was, in my opin
ion,' said the Chief Justice, IAN abus
of discretion in dismissing the appea
considering all the circumstances, an
especially the fact that the case wa
called and the appeal dismissed tire
hours before the time set for the hear
ing. So far as we can make out, IN
Ind discretion
DRY in Diminishing the appeal and on tn
law theory in denying reinstatement.
1.-The appellant did not default Or fal
to appear. He appeared and was desir
Gus of prosecuting his appeal, but mere
lily informed the Court that he was no
ready, the appellee (who was the plain
/ tiff having already informed the Cour
he also was not ready. We have pre-
Iviously reversed the order dismissing tn
appeal. and now state our reason there
for"
Justice Galbraith concurs in the con
clusion but not in all the reasons give
by the Chief Justice. 1t seemed to hir
that the question presented by the ex
lception to the order of the Circuit Cour
dismissing appellants appeal is clearl
one of law and not of judicial discretion
The discretion theory. he contends, car
ries with it the idea that there are n
fixed questions of strict right involved
When the appeal was perfected the az
pellant was entitled, as an absolute RICH
under the law, to a new trial de move
He also had right to demand that tn
appellee prove a cause of action agalns
him. The order dismissing his appea
was a denial of these rights-an error @
law and nothing more.
Justice Perry in commenting on tn
case and the Chief Justices opinion
states that it seems to him to be unnee
sary to decide whether or not it wa
within the power of the trial Judge, a
a matter of strict law, to dismiss tn
appeal in question, and for this reason
if it was not in his power to dismiss tn
appeal, then the order excepted to wa
clearly erroneous, and the exception mus
be sustained; it, on the other hand
was in his power to dismiss the appea
that power could best be made use c
only in the exercise Of a sound discre
ton.
There was in my opinion an abuse {
discretion in Diminishing the appeal" sal
the Judge, land I concur, therefore, i
the conclusion that the exception mus
be sustained, but base such concurrenc
solely on the ground that, assuming tha
the matter is one belonging to the dis
cretion' class, there was an abuse of dis
cretion.'