Boone v. Mowat , 33 Haw. 309 ( 1935 )

This cause comes here on plaintiff's bill of exceptions. The case involves a tort action for damages growing out of an automobile collision and was tried in the court below jury waived. At the conclusion of the introduction of evidence in behalf of plaintiff counsel for defendant moved for a judgment of nonsuit on the ground that the evidence was insufficient to support a judgment for plaintiff. Before the trial court was accorded an opportunity to rule on the motion thus presented plaintiff's counsel interrupted with a motion to be permitted to reopen his case and introduce further evidence in plaintiff's behalf. The court denied the motion to reopen but as shown by the transcript, which is made a part of the bill of exceptions and its correctness certified by the official reporter, the court did not rule on defendant's motion for a nonsuit. The plaintiff has perfected his appeal to this court through the medium of a bill of exceptions upon the erroneous assumption that the motion for nonsuit was granted and the case thus finally disposed of in the lower court. The trial court by inadvertence approved the bill of exceptions which recited that the motion for a nonsuit had been granted and the motion to reopen denied. The transcript of the proceedings clearly indicates that the motion for nonsuit remains undisposed of.

It is the rule in this jurisdiction that where the official transcript is by reference or otherwise made a part of a bill of exceptions and there occurs a discrepancy between these documents in reference to the proceedings had in the trial court it is proper to assume the correctness of the transcript. (Territory v. Masagi, 16 Haw. 196, 204; Territory v. Rodrigues,30 Haw. 198, 201.) It therefore follows we must conclude that the motion for nonsuit was not granted by the trial court and there has been no final disposition of the cause in the court below and that the present appeal was prematurely taken. (Territory v.Ah Quong, 14 Haw. 108.)

The remaining exception to the refusal of the court to permit plaintiff to reopen his case for the introduction of additional evidence might have been brought to this court on an interlocutory bill of exceptions if allowed and certified to by the trial judge as provided in the last paragraph of section 2515, R.L. 1925, but the bill of exceptions before us is not interlocutory in its nature but bears all the characteristics of finality.

Defendant's counsel has interposed a motion to dismiss the bill of exceptions on the ground among others that defendant's motion for nonsuit is still pending, for which and the additional reason that the case is not before us on an interlocutory bill of exceptions the motion is granted, the bill of exceptions dismissed and the cause remanded to the circuit court.