40 Haw. 475 | Haw. | 1954
A bill in equity was filed in the court below seeking specific performance of a contract to lease certain premises in Honolulu. A demurrer to the bill of complaint was interposed which the chancellor overruled and the respondents were given ten days to answer. The respondents elected to stand on their pleadings and appealed to this court from the decision overruling the demurrer. *476
Although no question of jurisdiction was raised by the petitioners-appellees during the argument, the court itself raised the question whether it had jurisdiction.
Our statute relative to appeals allows appeals from final decrees only and interlocutory decisions are not appealable unless allowed by the judge as provided in the statute. (Kahue
v. Palaualelo,
Orders overruling demurrers are interlocutory and not appealable.
In Barthrop v. Kona Coffee Co.,
In Makainai v. Lalakea,
In the case of Cole v. Rustgard,
It is obvious that the "decision" below does not meet this test. Not only would the pleadings require a decree setting forth the terms of the lease in detail including covenants, the amount of money to be paid, but also an accounting to the petitioners for their alleged monthly loss by failure of respondents to perform the contract in July, 1953.
The appellate court is in duty bound to dismiss an appeal on its own motion where it appears from the record that the court was without jurisdiction even though no objection was raised by the opposite party. Lack of jurisdiction cannot be waived or conferred by agreement of the parties.
In the case of Great Southern Fire Proof Hotel Co. v.Jones,
"Jurisdiction of subject matter cannot be waived. * * * If parties do not raise the question the court on its own motion will. * * *" (Meyer, et al. v. Territory,
The appeal is dismissed for lack of jurisdiction.