19 Haw. 511 | Haw. | 1909
OPINION OF THE ’COURT BY
This was a bill for an injunction to restrain the levy upon the plaintiff’s real property of an execution on a judgment of the circuit court in an action by the defendant Campbell upon a joint and several promissory notes signed by the plaintiff and her husband. The bill alleges that the plaintiff owns an undivided one-half interest in certain land in Honolulu in the possession of Lewers & Cooke, Ltd., who had brought a petition in the court of land registration to register its title thereto; that upon appeal by Lewers & Cooke from a decree of the land court dismissing the petition a decree to the same effect was entered in this court declaring that Lewers & Cooke have no title, from which decree an appeal to the United States
The judge issued a temporary injunction upon the filing of the bill April 30. The defendants demurred on the grounds that the bill shows no equity and that its matters have been adjudicated at law in favor of the defendants, at the same time moving to dissolve the temporary injunction on the ground that it was improvidently issued and not warranted by the facts. The motion was denied, the defendants appealing, by leave of the judge, the ruling being interlocutory.
The defendant’s claim is that if the plaintiff had any remedy,
As held in Norris v. Herblay, 9 Haw. 514, equity will not relieve against a judgment by reason of a defense (in that case the statute of limitations) which was available at law; but the plaintiff claims that the order denying her motion to quash the levy was interlocutory and not final and therefore that she could not bring that matter; up by a writ of error or on bill of exceptions until after her land was sold, involving additional expense and litigation and clouding her title pending such litigation. By Secs. 1858 and 1859 B. L. appeals are allowed from all decisions of district magistrates and “from, all decisions, judgments, orders or decrees of circuit judges,” and by Sec. 1861 “an appeal duly taken and perfected in any case from a judgment, order or decree of a circuit judge or district magistrate shall operate as an arrest of judgment and stay of execution;” but an order or decision which is not final is not appealable, as held in In re Bankruptcy of Gouveia, 8 Haw. 253; Prov. Gov’t. v. Ah Un, 9 Haw. 164; Prov. Gov’t. v. Smith, 9 Haw. 118; Brown v. Carvalho, 9 Haw. 180; Estate of Banning, 9 Haw. 351; Same, 9 Haw. 359; Spreckels v. Circuit Judge, 10 Haw. 198, 206; Barthrop v. Kona Coffee Co., 10 Haw. 398.
By Sec. 1864 B. L. exceptions may be taken in trials of actions at law to any ruling or order of the presiding judge,
After the order no further rulings were to be made in confirmation of the sale or otherwise involving the question decided on the motion to quash. We are therefore of the opinion that exceptions to the order could have been brought before the sale. See Laclede Nat. Bank of St. Louis v. Betterton, 24 S. W. (Tex.) 326; Phillips & Hudson v. Brazeal, 14, Ala. 746; Gale v. Michie, 47 Mo. 326; James & Ray, Ex Parte, 59 Mo. 284; Packer v. Owens, 164 Pa. St. 185, 194. This remedy at laAv excludes the jurisdiction of equity in the case, and furthermore the plaintiff’s claim having been adjudicated adversely to her in the action has become res judicata.
Order reversed, case remanded with instructions to grant motion to dissolve injunction.