Kahai v. Kuhia

OPINION OP THE COURT BY JUDD, C.J. In this case the Circuit Judge at chambers, after various hearings of the evidence in an equity ease, declared orally that he granted the prayer of the bill and would sign a decree accordingly. Counsel for defendants immediately noted an appeal. This was on the 29th September, 1896. On the 3d October the defendants’ counsel filed an appeal, and on the 8th October perfected the same by paying costs and filing the required bond for costs. On the 19th October the decree was signed by the judge. On the 26th of January, 1897, counsel for complainants filed a motion before the same judge to dismiss the appeal, “it appearing from the record that the same has not been perfected, or the rules of court relative to appeals complied with.” Defendants’ counsel was served with notice, and the matter came on to be heard on the 29th January, and the Circuit Judge dismissed the appeal on the ground that the appeal was taken before the filing of the decree, and was not taken from the decree but from the ruling of the court, and that no appeal has been noted from the decree. On request, the judge on the 5th February signed a certificate that he allowed defendants to appeal from his order dismissing their appeal. This case comes to us in this condition. We think the order dismissing the appeal was irregular. Questions as to the validity of an appeal, which in the view of the appellant is completed, are cognizable only by the Appellate Court. But by the rule of court of June, 1895, the Circuit Judge can withhold his certificate of the completion of the appeal. If he had done so in this case the defendants, contending for [5] the validity of their appeal, could under the same rule have brought the matter to this court to determine whether the certificate was properly withheld. J. A. Magoon and W. 8. Edings, for complainants. J. K. Kaulia, for defendants. But the question of the validity of the alleged appeal beiug now before us, we hold that the appeal is invalid, because taken from the decision and not from the decree. "We so held in Un Wo Sang Co. v. Alo, 7 Haw. Rep. 673. Appeal dismissed.