19 Haw. 334 | Haw. | 1909
The decree of the court of land registration registering the title of Lewers & Cooke, Ltd., having been reversed upon the appeal of Mary TT. Atcherley (In re Lewers & Cooke, Ltd., 18 Haw. 625; 19 Haw. 47), the court of land registration entered a decree' denying the petition for registration. After entering the decree the judge of the court of land registration prepared and certified a statement of facts of the case. The appeal of the petitioner from the decree was submitted upon the briefs filed on the previous appeal, but counsel for Mrs. Atcherley interpose a motion to dismiss the appeal and a motion to strike the statement of facts from the files.
We see no ground for striking the statement of facts from the files. While it has been held that the circuit judges may refuse to make, findings of fact (Waialua Agricultural Co. v. Oahu Railway and Land Co., 18 Haw. 81, 87), and the same is true of the court of land registration, yet the making and filing of such statements, whether done formally at the request of either party or embodied in the opinion of the court or judge, is frequently done as a matter of practice and is of material assistance to the appellate court. In jury waived cases particularly it some times happens that the decision is so brief as to afford no clew as to the matters of law and fact passed upon, and that it is possible to support the decision upon a view of the facts which, while sustained by some of the evidence, is so completely contradicted by other testimony that it was in all probability not the real ground for the decision. The appellate court, while satisfied that in all probability the decision was based upon a true view of the facts and an erroneous application of principles of law, is obliged to sustain the- decision because there is some testimony to support an improbable view of the facts. We do not wish to discourage the practice of the trial courts in indicating either in their opinions or in separate find
The motion to dismiss the appeal is based upon the groupd that the present decree was entered in conformity with the previous opinion of this court with no new trial or evidence, and that the points of law raised by the appeal were all decided at the former hearing.
While it is true that no new points were suggested by counsel the court did not consider itself at liberty to overlook the fact that under the present decree the petition, although covering land not in controversy, was denied in toto, and requested further argument on that point. Irrespective of the decision on this question the existence of a new point available to the petitioner on its appeal is fatal to the motion to dismiss.
Passing to the merits of the case, it will be observed that the first decree of the court of land registration was reversed and the case remanded for fui'ther proceedings in conformity with the opinion of this court. In re Lewers & Cooke, Ltd., 18 Haw. 625, 640. The recital in the present decree that this court ordered that a final decree be entered by the court of land registration denying the petition to register that portion of the lands
Decree accordingly.