OPINION OP THE COURT BY
PARSONS, J.
(Perry, C. .T., dissenting.)
Tlie above entitled case is now in this court upon questions of law reserved by the circuit judge under the provisions of section 2513, R. L. 1925. The preliminary question as to the qualification or disqualification of Mr. Justice Banks to sit in the case was raised before the hearing-by the suggestion of Mr. Justice Banks himself and was: disposed of by majority ruling of this court that said justice was so disqualified. This opinion is in support of the ruling so made at that time.
One of the questions submitted by the trial judge is whether or not a fee awarded to Ferdinand Sclmack, as master, by the presiding judge in probate in the above entitled matter on June 2,1921, is a proper charge against the estate in probate of F. W. K. Beckley, deceased. Whether or not the charge referred to is a proper charge against said estate is dependent in part upon the jurisdiction of the judge of the probate court to order an accounting and to appoint Mr. Schnack master in said matter, for the purposes, at the time and in the manner hereinafter set forth.
The record before us contains as exhibits
“T>”
and “E” copies of two orders made by Mr. Justice Banks in said matter as the then judge of said probate court under dates of October 7, 1921, and February 3, 1922, respectively. Omitting caption, title, dates and signatures, they are as follows: Order of October 7, 1921: “This matter coming-on before me for hearing on the petition of Sabina K.
Hutchison, asking for an accounting from Emma Metcalf Beckley, and on the return of Emma M. Nakuina (formerly Emma M. Becldev), and it appearing that the prayer of said petition should he granted, and it further appearing from the statements of respective counsel that it is impractical to secure an accounting from Emma M. Nakuina without a complete examination into her accounts, and the respective counsel waiving any claim for an accounting because of any personal property owned by said F. W. K. Beckley at the date of his death, and other good cause appearing therefor, it is hereby ordered, adjudged and decreed that the said Emma M. Nakuina render a full, true and correct accounting of the estate of the said F. W. K. Beckley, but not of any personal property owned by him at the date of his death, and that said accounting be obtained as hereinafter ordered; and it is further ordered that Wm. Hoopai be and he is hereby appointed master to act in the above entitled estate for the purpose of obtaining an accounting from the said Emma M. Nakuina, and with full power in the premises to subpoena witnesses, administer oaths and do all and every act and have every power usual to masters; and it is hereby further ordered that the above entitled matter be and the same is hereby referred to the said Wm. Hoopai as master to hear the same and the parties thereto and their evidence, for the purpose of obtaining and to obtain an accounting from the said Emma M. Nakuina, and report his findings to this court.” Order of February 3, 1922: “It appearing that Wm. Hoopai, the master appointed under order of court dated and filed October 7, 1921, in the above entitled matter, has resigned and good cause appearing therefor, it is hereby ordered, adjudged and decreed that F. Schnack be and he is hereby appointed master in the place and stead of the said Wm. Hoopai for the purpose of obtaining an accounting from the said Emma
Nakuina as ordered in the said order of October 7, 1921, with all the powers and duties granted by said order to Wm. Hoopai.”
In the opening brief for the Bishop Trust Company, Limited, administrator with the will annexed, the first proposition which said administrator seeks to demonstrate is thus set forth: “The probate court had no jurisdiction over the accounting by Mrs. Nakuina, who was trustee as well as executrix, for the reason that this accounting Avas in her capacity as trustee and not as executrix, and Avas therefore an accounting Avithin the jurisdiction of a court of equity and not of a court of probate.” In the master’s brief, section íavo sets forth in its opening paragraph that “the next question * * * is whether or not the circuit judge properly ordered an accounting.” In its ansAvering brief the administrator Avith the will annexed recites: “The main contention of the Bishop Trust Company, Limited, in its opening brief was that the accounting by Mrs. Nakuina, out of which the present question arises, Avas improperly ordered by the probate court for the reason that such accounting Avas really an accounting by her as trustee, over which accounting a probate court has no jurisdiction, and not an accounting by her as executrix.” Thus counsel are in agreement that one of the principal questions to be determined by this court upon the present submission is the question of the validity or invalidity of the tAVO orders above quoted and this vieAV, in our opinion, is sustained by an examination of the record.
The portion of section 84 of our Organic Act applicable to the present controversy, with other parts omitted, reads as follows: “* * * nor shall any person sit as a judge * * on an appeal from any decision or judgment rendered by him.” In construing the above quoted portion of section 84 with reference to the question of the
qualification or disqualification of a member of this court to sit upon submissions like the present one we are confronted by two questions: (1) What is an “appeal” within the purview of the section? and (2) Within the meaning of that section, how must the judgments or decisions of the trial judge be questioned or attacked in order to render him disqualified to sit in review of the same?
(1) With reference to the first question set forth in the last preceding paragraph, the Organic Act does not contain its own definitions, but it does provide (Sec. 83) “that the laws of Hawaii relative to the judicial department, including civil and criminal procedure, except as amended by this Act, are continued in force, subject to modification by Congress, or the legislature.” Chapter 146, R. L. 1925, according to its title, deals with “Appeals, Exceptions, Error.” In it are the subheads “Appeals,” “Reserved Questions,” “Exceptions,” and “Writs of Error.” Each term has its own technical meaning and each has its own separate provisions. Did Congress intend that only in cases coming up on “appeal,” as that term is technically used in sections 2508 to 2512 of chapter 146, R. L. 1925, in contradistinction to other methods of review provided in the later sections of that chapter, would judges be disqualified to sit in review of their own judgments and decisions? We believe that such a construction would defeat the apparent purpose of the provision, which is to secure to litigants the right of a fair and impartial review of judgments and decisions, by whatever appellate procedure is prescribed or appropriate in the premises, and before judges other than those who themselves rendered the judgments or decisions thus to be reviewed. In this view the word “appeal,” in so far as it refers to a method or methods of review in this court, is construed with reference to section 2224, R. L. 1925, winch provides in part that “the supreme court shall have
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OPINION OP THE COURT BY
PARSONS, J.
(Perry, C. .T., dissenting.)
Tlie above entitled case is now in this court upon questions of law reserved by the circuit judge under the provisions of section 2513, R. L. 1925. The preliminary question as to the qualification or disqualification of Mr. Justice Banks to sit in the case was raised before the hearing-by the suggestion of Mr. Justice Banks himself and was: disposed of by majority ruling of this court that said justice was so disqualified. This opinion is in support of the ruling so made at that time.
One of the questions submitted by the trial judge is whether or not a fee awarded to Ferdinand Sclmack, as master, by the presiding judge in probate in the above entitled matter on June 2,1921, is a proper charge against the estate in probate of F. W. K. Beckley, deceased. Whether or not the charge referred to is a proper charge against said estate is dependent in part upon the jurisdiction of the judge of the probate court to order an accounting and to appoint Mr. Schnack master in said matter, for the purposes, at the time and in the manner hereinafter set forth.
The record before us contains as exhibits
“T>”
and “E” copies of two orders made by Mr. Justice Banks in said matter as the then judge of said probate court under dates of October 7, 1921, and February 3, 1922, respectively. Omitting caption, title, dates and signatures, they are as follows: Order of October 7, 1921: “This matter coming-on before me for hearing on the petition of Sabina K.
Hutchison, asking for an accounting from Emma Metcalf Beckley, and on the return of Emma M. Nakuina (formerly Emma M. Becldev), and it appearing that the prayer of said petition should he granted, and it further appearing from the statements of respective counsel that it is impractical to secure an accounting from Emma M. Nakuina without a complete examination into her accounts, and the respective counsel waiving any claim for an accounting because of any personal property owned by said F. W. K. Beckley at the date of his death, and other good cause appearing therefor, it is hereby ordered, adjudged and decreed that the said Emma M. Nakuina render a full, true and correct accounting of the estate of the said F. W. K. Beckley, but not of any personal property owned by him at the date of his death, and that said accounting be obtained as hereinafter ordered; and it is further ordered that Wm. Hoopai be and he is hereby appointed master to act in the above entitled estate for the purpose of obtaining an accounting from the said Emma M. Nakuina, and with full power in the premises to subpoena witnesses, administer oaths and do all and every act and have every power usual to masters; and it is hereby further ordered that the above entitled matter be and the same is hereby referred to the said Wm. Hoopai as master to hear the same and the parties thereto and their evidence, for the purpose of obtaining and to obtain an accounting from the said Emma M. Nakuina, and report his findings to this court.” Order of February 3, 1922: “It appearing that Wm. Hoopai, the master appointed under order of court dated and filed October 7, 1921, in the above entitled matter, has resigned and good cause appearing therefor, it is hereby ordered, adjudged and decreed that F. Schnack be and he is hereby appointed master in the place and stead of the said Wm. Hoopai for the purpose of obtaining an accounting from the said Emma
Nakuina as ordered in the said order of October 7, 1921, with all the powers and duties granted by said order to Wm. Hoopai.”
In the opening brief for the Bishop Trust Company, Limited, administrator with the will annexed, the first proposition which said administrator seeks to demonstrate is thus set forth: “The probate court had no jurisdiction over the accounting by Mrs. Nakuina, who was trustee as well as executrix, for the reason that this accounting Avas in her capacity as trustee and not as executrix, and Avas therefore an accounting Avithin the jurisdiction of a court of equity and not of a court of probate.” In the master’s brief, section íavo sets forth in its opening paragraph that “the next question * * * is whether or not the circuit judge properly ordered an accounting.” In its ansAvering brief the administrator Avith the will annexed recites: “The main contention of the Bishop Trust Company, Limited, in its opening brief was that the accounting by Mrs. Nakuina, out of which the present question arises, Avas improperly ordered by the probate court for the reason that such accounting Avas really an accounting by her as trustee, over which accounting a probate court has no jurisdiction, and not an accounting by her as executrix.” Thus counsel are in agreement that one of the principal questions to be determined by this court upon the present submission is the question of the validity or invalidity of the tAVO orders above quoted and this vieAV, in our opinion, is sustained by an examination of the record.
The portion of section 84 of our Organic Act applicable to the present controversy, with other parts omitted, reads as follows: “* * * nor shall any person sit as a judge * * on an appeal from any decision or judgment rendered by him.” In construing the above quoted portion of section 84 with reference to the question of the
qualification or disqualification of a member of this court to sit upon submissions like the present one we are confronted by two questions: (1) What is an “appeal” within the purview of the section? and (2) Within the meaning of that section, how must the judgments or decisions of the trial judge be questioned or attacked in order to render him disqualified to sit in review of the same?
(1) With reference to the first question set forth in the last preceding paragraph, the Organic Act does not contain its own definitions, but it does provide (Sec. 83) “that the laws of Hawaii relative to the judicial department, including civil and criminal procedure, except as amended by this Act, are continued in force, subject to modification by Congress, or the legislature.” Chapter 146, R. L. 1925, according to its title, deals with “Appeals, Exceptions, Error.” In it are the subheads “Appeals,” “Reserved Questions,” “Exceptions,” and “Writs of Error.” Each term has its own technical meaning and each has its own separate provisions. Did Congress intend that only in cases coming up on “appeal,” as that term is technically used in sections 2508 to 2512 of chapter 146, R. L. 1925, in contradistinction to other methods of review provided in the later sections of that chapter, would judges be disqualified to sit in review of their own judgments and decisions? We believe that such a construction would defeat the apparent purpose of the provision, which is to secure to litigants the right of a fair and impartial review of judgments and decisions, by whatever appellate procedure is prescribed or appropriate in the premises, and before judges other than those who themselves rendered the judgments or decisions thus to be reviewed. In this view the word “appeal,” in so far as it refers to a method or methods of review in this court, is construed with reference to section 2224, R. L. 1925, winch provides in part that “the supreme court shall have
appellate jurisdiction to hear and determine all questions of law or of mixed law and fact which shall be properly brought before it on exceptions, error or appeal duly perfected from any other court, judge, magistrate or tribunal, according to law, or by reservation of any circuit court or judge.” In
Bruner
v.
Brewer,
20 Haw. 617, 619, in construing section 84 of the Organic Act, this court said: “The word 'appeal,’ it is obvious, is used in a general sense. A writ of error is an appeal within the meaning of the statute.” By analogy the Avord “appeal,” as used in said section of the Organic Act, extends not only to Avrits of error but to other methods of invoking the “appellate jurisdiction” of this court set forth in the above quoted section 2224, B. L. 1925.
(2) Within the meaning of section 84 of the Organic Act, how must the judgments or decisions of a trial judge be questioned or attacked in order to render him disqualified to sit in review of the same? If the judgment or decision is a final one and the case comes up upon direct appeal therefrom, by specific provision section 84 above quoted is applicable. By authority it is also applicable if the judgment or decision is interlocutory and the case comes up upon a writ of error Avhich contains an assignment directly attacking such interlocutory judgment or decision. In
Bruner
v.
Brewer, supra,
the circuit judge, under the terms of a stipulation, made an order referring the issues to arbitrators. Final judgment, based on the aAArard of the arbitrators, was entered by another judge of the circuit. Writ of error in the case Avas directed, as required by law, to the final judgment; but one of the assignments Avas that the trial court erred in making the order of reference “for the reason that there was no jurisdiction in said court or in said judge to make the same.” Upon suggestion of the disqualification, under section 84 of the Organic Act, of the judge Avho made the said order
of reference to sit upon review of said case in this court, this court said: “The order of reference is none the less a ‘decision’ merely because it was interlocutory. To hold otherwise would be to render the provision nugatory in many instances where the reason for its enactment exists as clearly as it does in the case of final judgments. Nor does the fact that the order was based upon the stipulation and was granted without hearing argument, render the statute inapplicable. The making of the order necessarily involved a ruling by the judge to the effect that he had jurisdiction to make it, otherwise it would have been denied in spite of the agreement of the parties.” By analogy, in the case at bar, the above quoted orders of the trial judge are judgments or decisions within the purview of the act and necessarily involve a ruling that he had jurisdiction to make them. This being so, under the opinion in
Bruner
v.
Brewer, supra,
he would have been disqualified to sit in revieAV of the same if the case had come xip on writ of error containing assignments directly attacking his jurisdiction to make such orders. The same reasoning Avould be applicable to actions at law coming-up upon exceptions to rulings of the trial judge. The present case is before us upon reserved questions of laAV, to hear and determine which this court has “appellate jurisdiction” as hereinaboAm set forth. Hoav, is a judgment or decision of a trial judge presented to an appellate court for revieAV by reserved questions? Not by an “appeal” therefrom Avithin the technical definition of that term. Not necessarily, even incidentally, by exceptions thereto or assignments of error thereon. Ordinarily it is presented by a question as yet unanswered in the trial court Avhich, as in the case at bar, places in issue the legality or illegality of such a ruling. Formerly a question already ruled upon by the trial court could not be reserved.
McCandless
v. Lansing, 19 Haw. 467. Since
tlie amendment of 1919, however, it has been held that a ruling by the trial court is no bar to reservation.
Honolulu Plantation
v.
Tsunoda,
27 Haw. 835. It would be a strained construction of section 84 of the Organic Act to hold that upon reserved question the trial judge would be disqualified to sit upon review of his judgment and decision only when the question certified by himself or his successor was directly whether said ruling was legal or illegal, and that he would not be disqualified even though the legality of said ruling should be a necessary issue to be determined by the appellate court, if the question presented were so framed that it Avould ask the appellate court to determine the jurisdiction of the trial judge to make a subsequent order which depended for its validity in this respect upon the judge’s jurisdiction to make the judgment or decision first above referred to.
The vieAVS hereinabove expressed are not necessarily in conflict Avitli the decisions of this court in
Ex Parte Mankichi,
13 Haw. 570, and in
Ex Parte Ah Oi,
13 Haw. 534. In
Ex Parte Mankichi, supra,
this court held, as set forth in the syllabus of said case, that “a justice of the supreme court is not disqualified from sitting on an appeal in a habeas corpus case brought to obtain the release' of a prisoner under a sentence of imprisonment previously pronounced by such justice Avhen a circuit judge in a criminal case. The provision in section 84 of the Organic Act that ‘no judge shall sit on an appeal or neAV trial in any case in Avhich he may have given a previous judgment’ does not apply to such a case.” It Avill be noted that section 84 of the Organic Act has been amended since the case last above cited was decided. The judge then Avas prohibited from sitting on appeal or new trial in the
same case
in Avhich he may have given previous judgment, and the
Mankichi
case,
supra,
held that the criminal and
habeas corpus cases therein referred to were not the
same case.
O. A. Gregory
for the firm of
Bmitli, Wild '& Hoppe,
for the disqualification.
F. Schnack
contra.
In the
Ah Oi
case,
supra,
it does not even appear that the judge sought to be disqualified sat in the criminal case upon the verdict in which the habeas corpus case was predicated. The case decided, as set forth in the syllabus, that “a justice of the supreme court is not disqualified from sitting in a case with which he has had no previous connection merely because a question of law is involved which was involved also in certain other and distinct cases at the trial of which he had presided when a circuit judge. The provision in section 84 of the Organic Act * * * does not apply to such a case.”
For reasons hereinabove set forth we are of the opinion that Mr. Justice Banks is disqualified to sit in review upon the reserved questions of law described in the second paragraph of this opinion.