The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-03-09
TERRITORY
WINS OUT
Verdict of $4,000 for
the Lost Dredge
Stands.

By a unanimous opinion of the SUI
has scored a final advantage-at least
this side of Washington-in it's suit
against Cotton Brothers & Company
to recover the value of dredger lost
by the defendants while under lease
to them. A motion by the defendants
to quash a writ of error, taken out to
reverse Judge Lindsay's order grant
ing a new trial, is denied by the ap-
pellate court
On May q. 1904, the plaintiff obtain
ed verdict for SO, 900. Four days
later the defendants moved for a new
trial. Proceedings ran along until
June II. when the plaintiff renewed it's
objection, which had previously been
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
overruled the objection and heard ar
gument on the motion for a new trial,
but before deciding the motion went
to California
On February 81, 1905. the clerk re-
ceived and filed a cablegram dated
ing: "In Territory VS. Cotton order
motion for new trial granted. Grounds
mailed. Gear, Judge" On March T.
1905. the clerk received by mail and
+,,;o
signed by Gear, Judge" also letter
dated San Francisco, Feb. IS, from
Geo. d. 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 2. 1905, if not at midnight the
preceding day.
Judge Lindsay, successor to Judge
Gear, on July II granted a motion.
made by defendants three days pre-
viously, that a formal order be en-
tered granting a new trial" On Janu-
airy II, 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 |
it finds in this case that the Circuit |
Court had no jurisdiction because the |
defendants had not filed a bond with |
in the time required by law. There |
fore the motion for a new trial was |
in the nature of new proceeding and
the decision thereon a final judgment |
and renewable. The writ or error to |
reverse Judge Lindsays 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 it will be
to decide whether Judge
Gears order for new trial by cable,
or subsequently, by mail. was void up
1n the ground that it was made in
California and outside of his jurisdic-
ion. or on the ground that the mail
I'd decision was made after the expira-
ton of his term of office"
Chief Justice Frear is author of the
opinion, his cosignatories being JUS
ice Wilder and Circuit Judge De Bolt,
he last named in place of Justice
4artwell, disqualified. E. c. Peters,
Attorney General. and F. w. Milver-
on, Deputy Attorney General. appear
ID for the Territory, and s. H Derby
or defendants with Kinney, McClanay
van & Cooper on the brief
|