The Hawaiian gazette., 1906-03-09

wins OUT

by n unanimous opinion OF the SUI
prene Court the Territory OF Hawaii
has scored n final advantage-at least
this side OF Washington-in its suit
against Cotton Brothers a. Company
10 recover the value OF drcdger lost
by the defendants while under lease
TO them. a motion by the defendants
to quash writ OF error. taken out to
reverse Judge Lindsay's order grant
ing a new trial, is denied by the APP
pellate court.
ON May %. 1904. the plaintiff obtain
ed verdict for $4,000 Four days
later the defendants moved for new
trial. Proceedings ran along until
June IL. when the plaintiff renewed it's
raised to the hearing OF the motion
FOR a new trial on the ground that
the movant had not complied with the
statutory requirements. Judge Gear
ovorruled the objection and heard ar
gumcnt on the motion for new trial
but before deciding the motion went
to California.
on February %. 1905. the clerk re-
celved and filed cablegram dated
san Francisco. Cal. February 27. say
ing: In Territory VS. Cotton order
motion for new trial granted Grounds
mailed. Gear, Judge" on March 4,
1905. the clerk received by mail and
signed by Gear. Judge" also a letter
dated san Francisco. Feb. 25. from
Geo ID. Gear" stating that he had
been kept there by sickness and he
sent two memoranda for the clerk to
file and hoped they would get here In
time zone OF the memoranda" the
court remarks. apparently being the
opinion just mentioned" Judge Gears
term OF office expired at midnight
March ., 1905. If not at midnight the
preceding day.
Judge Lindsay, successor to Judge
Gear. on July Il granted motion,
made by defendants three days pre-
viously. that "A formal order be en-
tered granting a new trial" on Janu-
airy Il. 1906. the Territory sued out
a writ of error to reverse Judge Lind
says order. Defendants moved to
quash or dismiss the writ.
While the court holds that an order
granting "A new trial is usually inter-
locutory and not renewable on error.
IL finds in this case that the .Circuit
Court had no jurisdiction because the
defendants had not filed bond with
in the time required by law. There
fore the motion for a new trial was
In the nature of Il new proceeding and
the decision thereon "A final judgment
and renewable. The writ or error to
reverse Judge Lindsay's order stands,
and, In view of the finding that he
had no Jurisdiction. the decision prac-
tically ends the motion for new trial
Public curiosity upon the question
OF the validity OF Judge Gears "long
range decision" is disappointed by the
following concluding remarks of the
opinion:
In view OF the foregoing II will be
unnecessary to decide whether Judge
Gears order for new trial by cable,
or subsequently by mail was void up
on the ground that II was made In
california and outside of his jurisdic-
ton. or on the ground that the mall
ed decision was made after the expira
ton OF his term OF Office"
chief Justice Frear Is author of the
opinion, his cosignatories being Jus
tice Wilder and Circuit Judge DE Bolt
the last named In place of Justice
Hartwell. disqualified. f.. c. Peters,
Attorney General, and +. w. Milver-
ton, Deputy Attorney General. appear
ed for the Territory. and s. II. Derby
for defendants with Kinney. McClana,
han a. Cooper on the brief
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