30 Haw. 860 | Haw. | 1929
This is a suit in partition, begun by a bill in equity under the provisions of chapter 159, R.L. 1925. The bill alleges in effect inter alia that the three petitioners and Thomas Kreuger, one of the respondents, are the owners of an undivided estate in fee simple, in the different proportions set forth in the bill, as tenants in common of the three and one-half acres of land sought to be partitioned, subject only to a right of dower in and to an undivided one-fourth thereof then owned by the other respondent, George Kaha, who had theretofore acquired said dower right by conveyance; that the petitioners and respondents are all the persons having any interest or title in and to said premises so far as known to the petitioners. The bill prays for partition in kind among the respective owners as above set forth, or, if partition in kind is found to be impracticable, a sale of the premises and a division of the proceeds among the owners in proportion to their respective interests. The answer of the respondent Thomas Kreuger admits the allegations of the bill and prays for the same relief therein asked. The *862 sworn answer of George Kaha, the other respondent, alleges in effect, among other things, that he is the owner in severally in fee simple of a definitely described portion, afterwards shown to contain 17/100 of an acre, of the land sought to be partitioned; the said portion being claimed by adverse possession thereof on the part of said respondent, his predecessors in interest and his tenants for more than ten years prior to the institution of these proceedings. Kaha's answer prays that he may be adjudged to be the owner of the portion of the premises therein described, that the same be set aside to him and that he have such other and further relief as may be deemed meet and proper in the premises. Within ten days thereafter the respondent Kaha filed his demand for a trial by jury of the issues raised by the petition and answer; whereupon a jury was impaneled in said partition proceeding as in section 2768, R.L. 1925, provided, to specially hear and determine the particular issue as to whether or not the respondent Kaha had acquired title by adverse possession to the 17/100 of an acre described in his answer. By stipulation Kaha assumed the affirmative and the issue above named was tried before the jury impaneled as in an action at law, the trial resulting in a verdict "that the respondent George Kaha is the owner of the property mentioned in his answer." No judgment or decree was entered upon this verdict. Exceptions were taken at the trial to the court's admission of certain testimony, to its denial of petitioners' motion for a directed verdict and motion for a new trial and to the giving and refusal of certain instructions; and these exceptions were, within the time allowed in actions at law and due extension thereof, presented to the trial judge for allowance and by him allowed.
After the case on petitioners' exceptions had been submitted to this court by appellants and appellee by briefs *863 on the merits, the parties were asked by this court to answer the following jurisdictional questions: (1) In a suit in equity for partition of real estate brought under the provisions of chapter 159, R.L. 1925, where, as provided by section 2768 of said chapter, a jury has been impaneled upon demand of an interested party to hear and determine a particular issue of fact as to the legal title to a certain alleged share or interest in said property, has this court jurisdiction upon a bill of exceptions to review said jury proceeding and verdict and the trial judge's denial of a motion for a new trial? (2) Is this case, or any part of it, now legally before the supreme court for review, either under the provisions of section 2515 as to exceptions or under the provisions of section 2509 as to appeals, either interlocutory or final?
Whereupon respondent-appellee moved to dismiss petitioners-appellants' bill of exceptions "upon the ground and for the reason that the supreme court of the Territory of Hawaii is without jurisdiction to review upon bill of exceptions the jury proceedings and verdict and the trial judge's denial of a motion for new trial in a suit in equity for partition of real estate" in the circumstances set forth in the foregoing questions.
Upon the question as to whether or not exceptions lie in the circumstances above recited and upon questions of constitutional law and statutory construction therein suggested, which need not here be repeated in detail, argument was invited from amicicuriae whose valuable assistance is hereby acknowledged.
The suit was brought under the provisions of chapter 159, R.L. 1925, enacted as chapter 178 of the Session Laws of 1923. Proceedings under that Act are, by express provision, in equity. Trial by jury of questions of disputed title under that Act is part of the equitable proceeding. Section 2768 of the chapter of the Revised Laws *864 above referred to provides as follows: "Whenever the legal title of any particular share or interest in the property is controverted, the court shall, upon the demand of any party interested therein if demand shall be made and filed within ten days after the filing of the answer controverting the same, cause a jury to be empanelled in the partition proceeding, in like manner as in actions at law, to specially hear and determine such particular issue, and for such purpose the jury shall be drawn from the regular jury list at the time subject to call in actions at law in the same circuit; otherwise the right of trial thereof by jury shall be deemed to be waived and such issue shall be heard and determined by the court sitting without a jury."
Prior to the enactment of the 1923 statute above referred to, a bill of partition in this Territory could not be made the means of trying a disputed title. Kaneohe Rice Mill Co. v. Holi,
United States Constitutional amendment number seven provides in full as follows: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." That this amendment applies to the territories of the United States "is no longer an open question." Thompson v. Utah,
Applying the foregoing rule, we presume that the legislature, in enacting chapter 159, R.L. 1925, intended to preserve to the parties in partition suits, where questions of title to real estate are properly raised and jury trials of such issues duly demanded, all the rights guaranteed them by the seventh amendment above quoted. As was said of Act of Congress of April 7, 1874, chapter 80, 18 Stat. 27, hereinafter quoted, the provision for jury trial therein referred to "implies not merely that the form of a jury trial be preserved, but also all its substantial elements." American Publishing Co. v. Fisher,
The seventh amendment is not restrictive as to the form in which the jury trial may be had, nor, except as herein set forth, as to the procedure therein applicable. In Walker v. NewMexico, etc., Railroad Co. (1897),
It has been suggested that the second part of amendment seven which provides that "no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law," prescribes common-law procedure to obtain a review and upon review in the class of cases therein referred to; but we have found no authority to sustain this view. The provision refers only to the re-examination of facts and has a well-defined meaning. "Two modes only were known to the common law for the examination of facts once tried by a jury; to-wit, the granting of a new trial by the court where the issue was tried or to which the record was returnable, or by the award of avenire facias de *868 novo from the appellate court for some error of law in the proceedings." Crim v. Handley,
Assuming, but not deciding, that the term "any Court of the United States" as used in said amendment includes the courts of record of this Territory, our statute does not conflict with the provision above quoted, for it does not require of said courts any other method of re-examination of facts than one or the other of the two modes above described; and, wherever permitted at common law, such mode may be followed thereunder. This also applies if we adopt the suggestion that the constitutional guaranty of trial by jury is in itself a guaranty that no fact tried by a jury shall be otherwise re-examined than according to the rules of the common law.
Thus construed, section 2768, R.L. 1925, does not conflict with the Constitution and furthermore it does not conflict with any Act of Congress. United States Judicial Code, section 267 (title 28, Sec. 384, U.S.C.A.), provides that "suits in equity shall not be sustained in any court of the United States in any case where a plain, adequate and complete remedy may be had at law. (R.S. § 723, Mar. 3, 1911, c. 231, § 267, 36 Stat. 1163)." In Dill v.Ebey,
The Act is that of April 7, 1874, chapter 80, section 1, 18 Stat. 27 (title 48, Sec. 1464, U.S.C.A.), referred to in an earlier part of this opinion, and it provides as follows: "It shall not be necessary in any of the courts of the several Territories of the United States to exercise separately the common-law and chancery jurisdictions vested in said courts; and the several codes and rules of practice adopted in said Territories respectively, in so far as they authorize a mingling of said jurisdictions or a uniform course of proceeding in all cases whether legal or equitable, are confirmed; and the proceedings heretofore had or taken in said courts in conformity with said respective codes and rules of practice, so far as relates to the form and mode of proceeding, are hereby validated and confirmed: Provided, That no party has been or shall be deprived of the right of trial by jury in cases cognizable at common law." The mingling of common-law and equity procedure by legislative enactment, under the restrictions named, is thus permitted in this Territory. This being so, and the legislature, by chapter 159, R.L. 1925, having provided such a mingling of procedure in suits in partition in the events hereinabove named, what is the proper method of reviewing the jury proceedings in such a suit? By express provision the suit is in equity, proceedings in which, the statutes provide, may be reviewed either in whole or in part, under appropriate procedure, by final appeal, by interlocutory appeal when properly allowed, by properly reserved questions of law, or by writ of error; but no statute provides for their review by bill of exceptions. L. 1892, c. 57, s. 74 and amendments thereto (now R.L. 1925, Sec. 2515), provide *870
for bills of exceptions to review proceedings of the kind therein referred to, which do not include proceedings in equity. Review of equitable proceedings by bill of exceptions is unknown to our practice. In a review of such proceedings by appeal or writ of error all the rights of the parties hereinabove discussed, guaranteed by the seventh amendment of the Constitution, may be preserved. "Where a party is entitled by express provision of law to a trial by jury of issues of fact and it is not discretionary with the court to direct an issue or refuse it, the verdict of the jury is generally regarded in the same light as the verdict of a jury in a common-law action, and the chancery court is bound by it and cannot disregard it except under the same circumstances as would justify the judge in the law court in setting aside a verdict in a common-law action. Where a distinct legal issue, on which a party to an equity suit is entitled to a jury trial as of right, is tried by a jury, the verdict will be given the same force as in ordinary jury trials, and will not be set aside but will be regarded as conclusive between the parties, unless the court has specified that it is palpably against the evidence." 21 C.J. 597. See also Procter v. Tubb,
Subsidiary questions as to details of practice upon review in cases of the kind herein discussed may well be *871 left for statement and consideration when they actually arise.
For the reasons hereinabove set forth the motion to dismiss petitioners' bill of exceptions is granted.