Castle v. Bowler

Opinion of the Cout, by Judd, C.J. The plaintiff brought this action in the Police Court of Honolulu, where judgment was entered in favor of defendant. He appealed to a Justice of the Supreme Court sitting at Chambers, where the same judgment was rendered on the 17th July last. By the Act of 1886 (Chapter LXII.) he has no further appeal on the facts. He however noted an appeal on the 20th July to the Supreme Court in Banco, on the ground that the decision of the Intermediary Judge ivas against the law and the evidence. He paid the costs on the 27th July, and deposited $50 in lieu of an appeal bond; no certificate of appeal was filed. The case went on to the* calendar of the Court in Banco, and Mr. Peterson, counsel for defendant, moved to dismiss the appeal, as follows: 1st. That this cause has been tried in the Police Court of Honolulu and before Mr. Justice Bickerton sitting in Chambers,' upon the facts, and judgment in both instances being for defendant, no further appeal upon the facts can be allowed. 2nd. That if this appeal is upon the law, no points of law have been stated, and the appeal must be dismissed. [367] 3d. That there is no appeal before this Court, no certificate of appeal having been signed, either by the Justice or the Clerk. There is nothing before this Court except a notice of appeal. We are of opinion that the motion to dismiss must be granted. In The King vs. Lee Choy, 7 Hawn., 62, we held that an appeal from a Police or District Court to the Supreme Court in banco, upon questions of law, must comprise a certificate signed by the Justice, of the points of law upon which the appeal is taken, failing which the Court has nothing to consider. This was affirmed in Humuula Sheep Station vs. Ahlo, 7 Hawn., 213. In Wenner vs. Lindsay, 7 Hawn., 119, we held that the certificate of appeal from a Justice of the Supreme Court should be signed by the Justice, and should state whether the appeal is to the Supreme Court in banco on points of law, or an appeal for trial on the facts. This decision also lays down that when the decision appealed from is written, and the appeal is taken on points of law therein stated or decided, the points of law need not be re-written (in the certificate of appeal). If the decision be oral, the points of law appealed from should be reduced to writing by-the appellant, signed by the Justice, and appended to the certificate of appeal. These decisions should settle the practice, and are as authoritative as if made a Rule of Court. We do not say that an appeal cannot be taken on the question of law whether the evidence sustains the decision, but this point of law must be sent up by the Justice who heard the case, and would have to embrace the evidence. The Appellate Court in banco, in such case, would not be authorized to try the case de novo on the facts, but only to examine the evidence so far as to see if there was sufficient to sustain the judgment appealed from. A failure to present such a certificate to the Justice for signature within ten days of the judgment is too late. In this case it was presented on the 27th August. Such a certificate is a part of the appeal and must be presented within the ten days. Appeal dismissed.