35 Haw. 811 | Haw. | 1941
The suggestion was made by the defendant-appellee that Mr. Justice Peters was disqualified to sit upon the appeal of the within cause for the reason that both he and his wife had a pecuniary interest in the issue thereof within the meaning of the provisions of section 84 of the Hawaiian Organic Act. The plaintiff-appellant demurred to the suggestion of disqualification on both general and special grounds upon the latter of which the demurrer was sustained with leave to the defendant-appellee, upon application therefor, to amend. (Seeper curiam, ante, p. 786.)
With leave of court, upon application therefor, the defendant-appellee has filed an amended suggestion of disqualification. The amended suggestion of disqualification presents the same grounds of disqualification and is based upon the records and files in the cause, the affidavit of the attorney filed in support of the original suggestion and the affidavit of a vice-president and cashier of the Bishop National Bank of Hawaii at Honolulu.
From the facts which have been now made to appear Mr. Justice Peters is clearly disqualified from sitting upon the appeal of the within cause upon the ground that in the issue of the within case the justice has, through his wife, a pecuniary interest within the meaning of the provisions of section 84 of the Organic Act. *813
Mrs. Peters has a direct pecuniary interest in the result of the case. Section 84 of the Organic Act prohibits a judge from sitting in any case in the issue of which he has, through his wife, any pecuniary interest. Plaintiff-appellant seeks recovery from the defendant-appellee of the sum of $9291.09, exclusive of interest. The bank is the equitable owner of preferred and common stock of the defendant-appellee in excess of a majority of its preferred and common stock issued and outstanding. If plaintiff-appellant recovers, to the extent that the defendant-appellee will be affected by the judgment against it, either in respect of its assets or income, the bank will be similarly affected in proportion to its holdings in the former corporation. Progressively to the extent that the bank may be affected by the judgment against the defendant-appellee, either in respect of its assets or income, its ability to pay dividends may also be affected and the amount thereof necessarily diminished. Finally, if the dividends payable by the bank are diminished, the income of which Mrs. Peters is the life beneficiary may be decreased and to that extent she has a direct pecuniary interest in the result of the case.
The degree to which the income payable to Mrs. Peters will be affected may be very small. Plaintiff-appellant characterizes it as "trivial" and "microscopic." But the degree of the interest is immaterial. Any interest however small has been held sufficient to render a judge disqualified. The only exceptions known to us to this broad and general rule are where the amount in issue is "so small as to come within the maxim de minimis non curat lex,"Adams v. Minor,
If the bank were a party to the within cause the justice would unquestionably be disqualified. (First National Bank v.McGuire,
Holding as we do that Mr. Justice Peters is disqualified, through his wife, to sit upon the appeal of the within cause, it becomes unnecessary to decide whether in the issue of this case the justice himself has any direct pecuniary interest.
Pursuant to the views herein expressed, the place of Mr. Justice Peters, as a member of this court, upon the hearing of the within appeal, shall be filled by a circuit judge in compliance with and in conformity to the provisions of R.L.H. 1935, § 3599.