The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-01-14
MUST HEAR THE
KAMALO CASE
Petition for Mandamus is Granted
by Higher Court Against
Circuit Judge.

instructed yesterday that when the Su-
preme Court decides that he should
| hear case he must obey. The opinion,
which was in the famous Kamalo Su-
gar Co. case, was given upon the ap-
plication of H. r. Hitchcock ct al for
mandamus to compel Humphreys to
/ take further testimony in the case in
| which he had been reversed by the Su-
| preme Court. 1t was written by As
sociate Justice Galbraith, Frear and
Perry concurring.
] The Supreme Court held that
Humphreys was all wrong in refusing
| to hear testimony which was Offered
on the first trial and rejected by him.
and which he was again ordered to
/ hear.
! The court further holds that their
order in this case was not direction
for a new trial, as Humphreys con-
tended. and consequently. was not
within the inhibition of Sec. S4 of the
Organic Act disqualifying judge from
sitting Ion appeal, or new trial in any
case in which he may have given pre-
vious Judgment
The following is the opinion as writ
ten by Justice Galbraith:
A petition and application was pre-
scented to this court for a peremptory
writ of mandamus against the First
Judge of the First Circuit Court COM
manding him to proceed with the hear
/ ing of certain suit In equity remanded
to him for further proceedings by order
of this court An order to show cause
was issued returnable the first day of
the present session. The respondent ap-
peared and interposed a demurrer alleg-
| ing that the petition does not state Il
cause of action.
| 1t is alleged in the petition that the Pc
| titioners are the plaintiffs in a suit heard
| by the said FIRST Judge of the First
Circuit Court; that from the decree rem
dered therein appeal was perfected
| to this court and decision rendered
November s, 1901 (ante, PIP. GAL to 65D
wherein the decree appealed from was
reversed and said cause was remanded
| to the Judge of the Circuit Court of the
| First Circuit with instructions to receive
| such evidence as may be offered under
| the amendments to the pleadings and
| for such further proceedings consistent
with the foregoing views as may be
proper" that the respondent set said
cause for hearing in pursuance OF the
directions of said mandate; that on the
day set for the hearing the respondent
suggested his disqualification and want
| of Jurisdiction and declined to proceed;
that there is no other Judge of the First
Circuit Court now in said Circuit except
the respondent; that his refusal to pro-
coed with the hearing IS a denial of
clear, legal and existing right and one
that cannot be enforced in any other
manner than that sought in this proceed
ing
The respondent, il appears, declined
and refused to act in the premises
two grounds: % That it was not clear
that this Court intended to remand the
cause TO the First Judge of the First Cir
cult; (2) that under the provisions of
Section 81 of the Organic Act of the Ter
ritory he was disqualified and had no
power to proceed.
| 1t is an answer to the first objection
F, to state that there is no doubt in the
mind of the members of this Court as
| TO the intention of the mandate and that
said cause was remanded to the respond
ent for further hearing. This intention
clearly appears from The opinions filed
in the cause and the ground on which
the ruling of the court was based. The
fact that the attorneys for the defend
ants in the equity suit did not raise the
! objection to respondent proceeding TO
hear the cause is a strong inferepce that
they understood the real intention of the
court in remanding the cause.
The provision of the Organic Act that
IS claimed to disqualify the respondent
reads: mo judge shall sit on an appeal,
or new trial, in any case, in which he
may have given a previous Judgment"
1t Is contended that the mandate di-
reefs new trial of the cause and that
the respondent having rendered pre-
vious judgment. i. e., the one appealed
from in that cause he has no power to
I nrnnGaI nc II TOD in he IN
language of the Organic Act is plain, I'M
ambiguous and mandatory. No judge
can cit on a new trial OF any case
wherein he has rendered previous judg-
ment If the mandate directs a new
trial then the contention of the respond
ent is correct and he is without juris-
d'cti"n and cannot proceed.
Ii is contended for the petitioners that
the mandate does not require or con-
template a new trial but only directs
the completion and perfection. of the
trial had at the former hearing-ths
hearing of evidence on new issues raised
by the amended pleadings and not re-
hearing of the issues on which evidence
was received; that the decree appealed
from was not heard on Its merits: that
II was reversed on motion based on the
ground that the trial had not been COM
plete and that the term new trial. in
the legal and technical use of the term
IL never applied to equity cases and that
for this reason the disqualification of the
Organic Act does not apply to this case.
A trial IS defined as THE examination
before a competent tribunal. according
- the laws Of the land. OF the facts pu.
in issue in a cause, for the purpose Of
determining such issue.'-Bouvier Law
Dictionary a new trial is "a re-exami
nation OF an Issue in fact before a court
AMI jury which has been tried at least
once tefore the same cour-."-Bouvier's
l.. d
A reading of the opinions referred TO
will show that the cause was remapded