24 Haw. 12 | Haw. | 1917
OPINION OF THE COURT BY
This is an action of assumpsit instituted in the district court of Lihue, County of Kauai, wherein the cause was determined. An appeal has been prosecuted by the defendant on points of law to the circuit court of the fifth judicial circuit from the judgment of the district court in the action. The defendant moved in the circuit court to have the case set for hearing, which motion was opposed on- the ground that Act 49 of the Laws of 1917 deprives the court of jurisdiction to try any term case before the second Wednesday in January, 1918, unless a. special
(1) “Is there now continuing any regular term of the circuit court of the fifth circuit, Territory of Hawaii, or will there be none held until the second Wednesday of January, 1918?”
(2) “Does the term Trial’ in section 2270 of the Revised Laws of 1915 as amended by Act 49 of the Session Laws of 1917 include hearings in cases brought to the circuit court of the fifth circuit from a district magistrate by appeals solely on points of law?”
Prior to April 3, 1917, by statute (Sec. 2268 R. L.) terms of court in the fifth circuit at Lihue were fixed on the first Wednesdays of March, July and November. This section, as amended by Act 49, S. L. 1917, now provides that terms of court shall be held “in the fifth circuit, at Lihue, on the second Wednesday of January,” thus making a continuing term for the year. This amendment, was approved April 3, 1917. The provisions in the old statute as to the three terms in the fifth circuit commencing on the first Wednesdays of March, July and November, being omitted in the amendatory statute, are repealed and the new provisions became effective at the date of its approval, April 3, 1917 (Weinzheimer v. Lufkin, 22 Haw. 183). This statute does not in terms, nor by implication revert back to. the first Wednesday in January, 1917, hence, under the law as it now exists, there is no authority for calling or holding the July or November term provided by the statute prior to its amendment. This may have been an oversight on the part of the legislature as it would have been an easy matter to have provided in the amendatory statute that from the date of its approval the fifth circuit court should be in continuous session during the remainder of
The answer to the second reserved question must depend upon the construction of the word “trial” as used in the amendatory statute. The statute (Sec. 2270 R. L.), before and since the amendment, provides that “no trial in any term case shall be had in July and August.” At common law the word “trial” meant the examination of the evidence and decision upon issues of fact. Bouvier in his law dictionary, following the rule announced in United States v. Curtis, 4 Mason 232, Fed. Cas. No. 14,905, defines the word “trial” as follows: “The examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose of determining-such issues.” This definition is substantially that given by early common law-writers (3 Blackstone, Commentaries, 330; Stephen’s Pleading77 — 3 Am. ed. 114 and appendix thereto, note 30). See also Hitchcock v. First Judge, 14 Haw. 1, 4. Under many statutes, owing to the phraseology used, the word “trial” has been held to em
The circuit court of the fifth judicial circuit is advised that there is now no continuing term of such court in the fifth judicial circuit and no provision of law by which a regular term thereof may be held during the remainder of the present year, and any term held in said circuit must-be held under the provisions of section 2269 R. L. And the circuit court is further advised that the term “trial”