17 Haw. 374 | Haw. | 1906
OPINION OF THE COURT BY
On May 27, 1904, at the April term of the circuit court of the first circuit, the plaintiff obtained a verdict for $25,000 damages for the loss of its dredger through the alleged negligence of the defendants. On May 31 the defendants moved for a new trial and gave notice that the motion would be presented for argument on June 3 or as soon thereafter as counsel could be heard. Accrued costs were paid and a deposit made for the costs of the motion, but no bond was filed conditioned for the payment of the costs of the motion and that the defendants would not to the detriment of the plaintiff remove or otherwise dispose of any property they might have liable to execution on the judgment, as required by Sec. 1805 of the Revised Laws. On the day noticed for the presentation of the motion, June 3, defendants’ counsel appeared but plaintiff’s counsel sent word to the court that he was not ready, being otherwise engaged, whereupon a postponement was ordered at his request until June 7, when he moved that defendants’ motion be dismissed for failure to file a bond as above mentioned, having given no intimation previously of his intention to so move. The facts as to what plaintiff’s counsel did on June 3 appear only by an affidavit made by defendants’ counsel and filed in the circuit court on June 7 in support of a motion that “time for perfecting motion for new trial by filing bond as required by statute be extended forty-eight hours from date.” The affidavit and motion were made and filed after argument had been made on the same day by counsel on both sides upon plaintiff’s motion to dismiss the motion for a new trial because of failure to file the bond required, and after defendants’ counsel had asked orally for twenty-four hours in which to file the bond after entry of judgment, no formal judgment having been entered previously. The court, Judge Gear sitting, had taken the question of dismissing the motion for a new trial under advisement until 1:30 p. m., but at 12 m., upon defendants’ counsel pre
On February 27, 1905, the clerk received and filed a cablegram dated San Francisco, Cal., February 27, 1905, as follows: “In Territory v. Cotton order motion for new trial granted. Grounds mailed. Gear, judge.” On March 4, 1905, the clerk received by mail and filed an opinion ordering a new trial signed by “Gear, judge;” also a letter dated San Francisco, Cal., Feb. 25th, 1905, from “Geo. D. Gear,” stating that he had been kept “here” by sickness and that he sent 2 memoranda for the clerk to file and hoped they would get “there” in time, one of the memoranda apparently being the opinion just mentioned. Judge Gear’s term of office was for four years from March 2, 1901, and therefore expired at midnight March '2, 1905, if not at midnight the preceding day. On April 14, 1905, defendants moved the court, Judge Lindsay, who was ■Judge Gear’s successor, sitting, that a formal order be entered granting a new trial, which motion was granted July 17, 1905, ■the formal order being entered the next day, to which the
Some courts hold that a ruling on a motion for a new trial, whether granting or refusing a new trial, is discretionary with the trial judge and cannot be reviewed by the appellate court on appeal, error or exceptions, whether before or after a new trial has been had, if one has been ordered, unless at least the ruling was based on matters occurring or discovered after the first trial and in regard to which therefore no exceptions could have been taken before verdict or judgment. Other courts, while holding that such a ruling is not so far discretionary as to preclude review within certain limits, hold nevertheless that it is interlocutory and cannot be reviewed before a new trial has been had, if one has been ordered, and, indeed, cannot ordinarily be made the direct subject of appeal, error or exceptions, but can be reviewed only upon a review of the final judgment in tbe case. See, in general, Wheeler v. U. S., 159 U. S. 523; Baker v. White, 92 U. S. 176; Waterhouse v. Rock I. A. M. Co., 97 Fed. 466; Young v. Shallenberger, 53 Oh. St. 291; People v. Judge, 41 Mich. 5; Williams v. La Valle, 61 Ill. 110; Magill v. Lyman, 6 Conn. 59; Johnson v. Parrotte, 46 Neb. 51; White v. Pease, 15 Utah 170; Commonwealth v. Morrison, 134 Mass. 189; Samuel v. Judin, 6 East 333.
It is contended by the defendants that in this jurisdiction an order granting a new trial, whatever may be the rule with respect to an order refusing a new trial (see Harrison v. Magoon, 16 Haw. 170, 332), is interlocutory, and, on the analogy of decisions in cases brought up on exceptions to other interlocutory rulings, cannot be reviewed on error before final judgment in the case. The interlocutory rulings referred to, which it has been held cannot be reviewed on exceptions before final
In view of the foregoing we prefer not to pass upon the question whether an order granting a new trial may or may not be brought to this court immediately on exceptions, and it is unnecessary to do so, for, assuming that it cannot, it does not follow that it can be brought here immediately by writ of error. The practice in regard to exceptions has been different from that m regard to error. The statute in regard to exceptions is broader than that in regard to error. Exceptions and error are inherently proceedings of different character. On exceptions, various specific rulings, whether interlocutory or final, whether brought up immediately or only after final judgment, are made direct and independent subjects for review; only so much of the record is brought up as is necessary for passing upon the specific exceptions; the decision usually is that the exceptions be sustained or overruled and that such further proceedings be had as the rulings on the exceptions call for. On error the final judgment alone is brought up, and specific rulings, whether excepted to or not, are considered only incidentally in passing upon the correctness of the final judgment; the entire record is brought up, and the judgment of the appellate court is such
If, however, as contended by the plaintiff, the circuit court had no power to make the order granting a new trial when it was made, it was a final judgment. In such case the court, having no jurisdiction over the verdict already obtained, could not vacate it or set it aside for the purpose of a new trial upon the merits of the original action. The motion for a new trial would in such case have to be regarded as a new proceeding and the order granting a new trial would be the final order in that proceeding and therefore reviewable. Hume v. Bowie, 148 U. S. 245; Macfarland v. Brown, 187 U. S. 244; Deering v. Creighton, 26 Or. 556. The question, therefore, is whether the circuit court had jurisdiction of the motion for a new trial and power to grant the motion.
The defendants’ failure to file the required bond within the ten days prescribed by the statute was fatal unless it was waived by the plaintiff. The defendants contend strenuously that since the bond is required by the statute to be conditioned that the defendant will not, to the detriment of the plaintiff, dispose of any property he may have liable to execution on “such judgment,” it could not be filed and therefore was not required to be filed before the entry of judgment, which in this case, as shown above, occurred the eleventh day after the verdict, and that therefore the bond, which was filed on the day of entry of judgment, was filed in sufficient time. Of course the judge could not extend the time prescribed by the statute. See Kapiolani Est. v. Peck, 14 Haw. 580; Kapiolani Est. v. Thurston, 16 Haw. 147. The question is solely, what did the statute require? This provided, Revised Laws, Sec. 1805, since
The question then is whether the failure to file a bond within the required time could be waived and if so whether it was waived.' Many courts hold that although formal or technical
If there was a waiver in the present case it was by implication. What is sufficient to show such a waiver ? A waiver partakes to some extent of the nature of an estoppel. It is sometimes called a quasi-estoppel. In general, unless it is express, it is shown either by such laches or by such inconsistent action as shows an intention not to rely upon the objection. For instance, moving for or consenting to repeated continuances after opportunity to raise the objection might be regarded as sufficient laches, and joining in error or submitting or agreeing to submit the matter upon its merits might be sufficient action of an inconsistent character. But what were the facts here? There is nothing but the affidavit of defendants’ counsel to show what was done by plaintiff’s counsel before he raised the objection. It does not appear upon what Judge Lindsay based his opinion. Even if he found that there had been a waiver, he was in no better position than this court is to pass upon this question, for he had nothing before him but the affidavit referred to. There was nothing in the affidavit of which Judge Gear did not have as full knowledge and notice as the affiant. No counter ¡affidavit was necessary. And yet Judge Gear did not find that there -was a waiver brat entertained jurisdiction upon the express ground, which we have held unsustainable, that the bond was filed in proper time. From his knowledge of the facts or his construction of the affidavit in the light of the facts as he knew them, he may have been of the opinion that there was no waiver. But let us assume that he did not so find, and take the affidavit at its face value.
The affidavit was apparently drawn with care with a view to making out as strong a case for the movant as the facts would warrant. It is not pretended that it shows laches. It can be relied on, if at all, only 'as showing inconsistent action, that is, that- the plaintiff’s counsel consented to a hearing of the motion on its merits and thereby waived the right to take the inconsistent position of contending that it was not properly before
In Little v. Jack, 68 Cal. 343, it was held that an appellee did not waive the right to a dismissal of an appeal for want of an appeal bond by stipulating to advance the appeal on the cal•andar for hearing. The court said: “There has been no such
In view of the foregoing it- will be unnecessary to decide whether Judge Gear’s order for a new trial by cable or subsequently by mail, was void upon the ground that it was made in California and outside of his jurisdiction, or on the ground that the mailed decision was made after the expiration of his term of office.
The motion to quash or dismiss is denied.