18 Haw. 429 | Haw. | 1907
OPINION OF THE COURT BY
Upon the plaintiff’s appeal from a decree dismissing his bill to enjoin the defendant from maintaining a certain iron pipe used for the conveyance of water across Lehna avenue, Pearl City,- Oahn, and under the railroad track of the plaintiff we held “that the defendant should be enjoined from maintaining the pipe line in question,” reversed'the decree and remanded, the cause “for such further proceedings as may be proper not inconsistent with this opinion.” Ante, p. 258. The decision was rendered February 11 last. The plaintiff thereupon moved the circuit judge for a decree’ enjoining the defendant under penalty of being adjudged in contempt from maintaining the pipe line. The attorneys for the respective parties appeared and the motion was heard February 18 and taken under advisement. The defendant offered to prove that after he
The defendant claims that by the terms of the remanding order he is authorized to present a further defense under the ruling in Bierce v. Hutchins in which the appellate court reversed the judgment of this court remanding the cause “for further proceedings in conformity with the opinion of this court,” and in 'which this court has held “The defendant should be allowed to present any points raised by his bill of exceptions not covered by the opinion of the Supreme Court of the United States.” Ante, pp. 374, 376.
It was undoubtedly the intention to remand the present cause for the purpose of enabling the plaintiff to obtain from the circuit judge the injunction prayed for by the bill and to secure by appropriate proceedings the observance of the injunction. In the Bterce cast1 the record presented defenses which have not been passed upon and which remain to be considered. The case is not authority for allowing this defendant to present before' the circuit judge a new defense especially upon facts presumably known to him at the former hearing. Tut it is not apparent that a new defense is proposed since the purchaser from the plaintiff, of land in which the defendant had acquired an easement, would .buy subject to the easement. The motion was therefore properly denied.
The rule upon the1 introduction of new parties is, “If the interest of the defendant requires their presence he takes the objection of nonjoinder and the complainant is forced to "amend
The right of appeal ordinarily is confined to parties in the cause. Thus in Hawn. Com & Sugar Co. v. Waikapu Sugar Co., 8 Haw. 721, a stockholder in the defendant company brought a petition against the defendant to require it to allow him to be substituted in the case which was a suit for partition and the petition was granted on the ground that one-half of the stock of the defendant corporation was held or controlled by the plaintiff and therefore the corporation would make no defense. In Spreckels v. Macfarlane, 9 Ib. 412, a bill to foreclose a stock lien, a person who had acquired the stock was allowed on his own motion to be substituted as plaintiff. The court, commenting upon the general rule that a motion can only be made by a party, said, “In actions of replevin, attachment, and in cases of distribution of money, .it has been the practice to entertain and hear motions made by persons in interest, though strangers to the record;” that the motion “contained allegations of fact and ivas in the form of a petition and was sworn to and the other party was served with a notice of it. We think that it fully served its purpose of a supplemental bill, and would bind the assignee by its result,” hence, “at the stage in which this case was, it was proper to procure the substitution of C. A. Spreckels for Claus Spreckels in the manner and form as it was done.” But whether intervention by motion rather than petition was the correct practice in this case or not it was properly denied.
The plaintiffs preliminar}' motion to dismiss both appeals on the ground that they were intended merely for ■ delay was denied. We doubt whether the motion to intervene in this cause gave a right of appeal from its denial thereby staying proceedings, but as both appeals were allowed the decree and orders appealed from are affirmed.