Kalaeokekoi v. Wailuku Sugar Co. ( 1909 )

OPINION OF THE COURT BY

WILDER, J.

(Ballou, J., dissenting.)

This is a reserved question from the first circuit court to determine whether that court has jurisdiction to try and determine an action of ejectment for land situated in the second circuit which was instituted in that circuit and with the consent of both parties transferred to the first circuit court.

The statutes involved are as follows:

“The several circuit courts shall have jurisdiction * * * as follows: * *. *

“Eirst. Of all criminal offenses cognizable under the laws of the Territory, .committed within their respective circuits or transferred to them for trial by change of venue from some other circuit court;

“Second. Of all suits for penalties and forfeitures incurred under the laws of the Territory;

“Third. Of all canses, civil or criminal, that may properly come before them on appeal from any other court according to law;

“Foxirth. Of all civil causes at law, except as otherwise expressly provided;

“Fifth. Any circuit court may, upon satisfactory proof that a fair and impartial trial cannot be had in any case pending in such court, and after the parties thereto shall have had opportunity to be heard, change the venue to some other circuit court and order the record to be transferred thereto; provided, however, that any circuit com’t may, in its discretion, upon the consent of all the parties to any civil cause pending in such court, change the venue to some other circuit court and order the record to be transferred thereto.” R. L. Sec. 1647.

“The judges of the several circuit courts shall have power at chambers within their respective jurisdictions, but subject to appeal to the circuit and supreme courts, according to law, as follows:

“First. To hear and determine all matters in equity;

“'Second. To hear and determine all matters of divorce, separation and annulment of marriage;

“Third. To grant probate of wills, to appoint administrators -and guardians, and to compel executors, administrators and guardians to perform their respective trusts and to account in all respects for the discharge of their official duties; to remove any executor, administrator or guardian: to determine the heirs at law of deceased persons and to decree the distribution of intestate estates;

“Fourth. To admeasure dower and partition real estate; when the dower in real estate cannot be set apart without great injury to the owners, the judge may ascertain the value of such dower in money, and order the same to be paid on such terms as shall be iust and reasonable; when the partition o'f real estate cannot be made without great prejudice to the parties, the judge may order a sale of the premises and divide the proceeds;

“Fifth. To legalize the adoption of children and to decree the affiliation of bastards;

“Sixth. To select and impanel, subject to challenge for cause, by either party, a special jury of inquiry of idiocy, lunacy, or de ventre inspiciendo, or in any other matter to be tried before-any of the said judges at chambers, and they shall receive and act upon the verdict of such jury as equity and good conscience require;

“Seventh. To issue writs of habeas corpus according to law;

“Eighth. To issue writs of error, certiorari, mandamus, ne exeat, prohibition and quo warranto, and all other writs and processes according to law, to courts of inferior jurisdiction, to 'corporations and individuals, that shall be necessary to the furtherance of justice and the regular execution of the law;

“Ninth. To enlarge on bail persons rightfully confined in all bailable cases;

“Tenth. To require either the plaintiff or defendant, upon the application of the opposite party, to give security for costs in any civil cause, upon such terms and conditions as the judge shall deem just;

“Eleventh. To issue warrants for the apprehension, in any part of the Territory, 'of any person accused under oath of a crime or misdemeanor committed in any part of the Territory and to examine and commit such person to prison according to law, for trial before the circuit court of the circuit in which the offense was committed, to fix bail and generally to perform the duties of a committing magistrate.” B. L. Sec. 1648.

“Provided, however, that the power and jurisdiction of circuit courts and circuit judges in chambers relating to causes of a civil nature as hereinbefore defined, shall be limited as follows:

“Eirst. Causes described in the second division of section 1647 shall be triable only in the circuit where it is alleged the penalty or forfeiture was incurred;

irSecond. Actions of ejectment, actions to quiet title in real property and actions of trespass quare clausum fregit shall be triable only in the circuit in which the real property in question is situated;

“Third. Causes of divorce, separation, and nullity of marriage, shall be triable only in the circuit where the .parties last lived together as man and wife, or, if they have not last so lived together in this Territory, in the circuit in which the applicant resides ;

“Foxirth. Proceedings for the probate .of wills, • for the appointment of administrators and trustees of the estates of deceased persons, for the admeasurement of dower and for all matters relating to the administration and settlement of estates of deceased persons, shall be brought only in the circuit where the deceased had his last domicile. Provided, that if the deceased was last domiciled without this Territory, .the proceedings may be brought in any circuit in which there is estate to be administered ;

“Fifth. Proceedings for the appointment of guardians and for all matters concerning the relation of guardian and ward, shall be brought in the circuit in which the person or a majority of such persons are domiciled, in whose behalf such proceedings are begun. Provided, that if such person is domiciled without the Territory, or a majority of such persons are so domiciled, the proceedings may be brought in any circuit in which there is estate of such person or persons;

“Sixth. Proceedings for the partition of real estate shall be brought only in the circuit where the real estate, partition of Avhich is prayed for, is situated. ProAdded, that if such real estate lies in more than one circuit the proceedings may be had in any circuit court in which the same or any part thereof is situated;

“Seventh. Proceedings for legalizing the adoption of children and decreeing the affiliation of bastards, shall be brought in the circuit in Avhich the parents, or either of them, of the children-in question reside. Provided, that if, in case of adoption, such parents are deceased or if neither of them resides Avithin the Territory the proceedings may be brought in the circuit in Avhich the adopting parent or parents reside;

“Eighth. The poAver of issuing writs of error and other Avrits specifically named in the eighth subdivision of section 1648 shall be in the judge of the circuit in Avhich the alleged occasion for relief by any such writ shall arise. ProAnded, hoAvever, that in case any such Avrit shall be necessary in the prosecution or furtherance of any cause or proceeding already begun or pending before any circuit court or judge, the power of issuing such writ shall be in the court or judge before whom such case or proceeding lias been begun or is pending, even though the alleged occasion for relief shall have arisen in another circuit.” R. L. Sec. 1649.

Sec. 1647 Avas originally a part of the judiciary, act of 1892 and the second subdivision of Sec. 1649 Avas enacted in 1898 with another clause in regard to torts, which last clause was dropped out in 1903.

It may be observed in the first place that so far as this question is concerned there seems to be no difference whether the action is transferred with the consent of both parties or because a fair and impartial trial cannot be had in the circuit where the action was instituted.

That the second subdivision of Sec. 1649 is a limitation is clear. The question is whether, as contended by plaintiff, it is a limitation on subdivision five of Sec. 1647. It certainly does not limit the second subdivision of Sec. 1647, referring to suits for penalties and forfeitures, as that matter is specifically referred to in Sec. 1649. Likewise it does not limit the first subdivision of Sec. 1647, which refers to criminal offenses, or the third subdivision, which refers to cases coming to the circuit court on appeal, as ejectment is neither a criminal offense nor is it brought to a circuit court on appeal. It undoubtedly limits the provisions of the fourth subdivision. It does not expressly 'refer to subdivision five in regard to change of venue, and it cannot be held that it impliedly limits the power there contained when the whole of the section is considered. As we construe the two sections together their meaning is that circuit courts have jurisdiction of all civil causes at law provided that actions of ejectment shall be triable only in the circuit in which the property is situated, leaving in full force the power to change the .venue in such cases. Sec. 1649 contains eight subdivisions, each of which expressly refers to and limits the power conferred by some particular subdivision in the two preceding sections. The effect is the same as if each subdivision of Sec. 1649 was annexed to the one to which it refers in the preceding two sections. Moreover, the court should be slow in adopting a construction which would eliminate the salutary provision for a change of venue in certain jury cases when there is another reasonable construction without that sequence.

C. W. Ashford for plaintiff. R. B. Anderson (Kinney, Marx, Prosser & Anderson on the brief) for defendant.

Reference is made to Kapiolani Estate v. Territory, 18 Haw. 460, 461, as implying that venue cannot be changed in ejectment cases. The language used there was, “Assuming but not deciding that an action to quiet title in real property is triable only in the circuit in which the real property in question is situated and that the venue of such an action cannot be changed, it does not follow that the venue of this action (one to establish a fishing right) cannot be changed.” The opinion in that case shows that the assumption was for purposes of argument only, and that no such implication as claimed was. intended.

A good deal was said by both sides as to the established practice; in regard to changing venue in ejectment cases. We cannot say that any definite practice has been established one ivay or the other, although so far as this court is concerned the reports show at least three opinions where it must have been assumed that venue could be changed in ejectment cases. Spreckels v. De Bolt, 16 Haw. 476; Spreckels v. Brown, 18 Haw. 91; Kalaeokekoi v. Wailuku Sugar Co. 18 Haw. 380.

The reserved question is answered in the affirmative.