Where there is no doubt that the import of the decree pleaded as
to a bill to quiet title was to the effect
that plaintiff in the former action had no title to the property,
the inquiry in the subsequent action is narrowed to the question of
jurisdiction of the court rendering the decree pleaded.
This Court will not presume that the highest court of the
Hawaiian Islands did not know its own powers or did not decide in
accordance with law of the Kingdom. John Ii Estate v.
Brown, 235 U. S. 342
This Court affirms the decision of the Supreme Court of the
Territory of Hawaii holding that the determination of the Supreme
Court of the Hawaiian Islands in a suit for partition made without
any objection by any of the parties and not appealed from is valid
and binding upon, and res judicata
as to, the same parties
and their privies in a subsequent suit involving the same land.
Even though the party making a motion to dismiss for want of
jurisdiction does not press it, this Court is not at liberty to
When, owing to confusion in the statutes, there is doubt as to
whether appeal or writ of error is the proper course, this Court
will, if possible, save a party's rights from being lost by mistake
in technicalities, and so held
that, under § 246, Judicial
Code, writ of error was the proper course to review the judgment of
the Supreme Court of Hawaii in a case involving over $5,000 in
which trial by jury was waived.
21 Haw. 756 affirmed.
Page 239 U. S. 503
The facts, which involve the validity of a judgment of the
courts of the Territory of Hawaii in an action affecting title to a
tract of land in that Territory, are stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a bill to quiet title to an undivided 29/36 of the
ahupuaa of Kaonoulu, a large tract of land in the island of Maui,
territory of Hawaii. The plaintiffs claim through the children of
one Keaka other than one daughter, Paakuku, through whom the
defendants claim the whole tract.
One of the defenses was res judicata.
relied upon as having decided the relative rights of the parties
was a bill brought in November, 1871, by the plaintiffs'
predecessors against Paakuku and others, alleging title in Keaka
during her life; a devise by her to her heirs, followed by joint
possession on the part of the plaintiffs and of Paakuku as
-trustee, and waste, a wrongful sale and a wrongful
lease by Paakuku. The bill prayed for an account from Paakuku, that
the sale and lease be ordered to be cancelled as against the
plaintiffs, and that a partition be decreed. Paakuku's answer set
up a conveyance of the premises by Keaka to her in fee, and
continuous possession by her since the date of the same. It also
alleged that Keaka's will, if not overridden by the subsequent
deed, devised the land to Paakuku in fee, subject to some merely
personal and revocable rights in some of the plaintiffs.
Page 239 U. S. 504
The case was tried in the supreme court before the Chief
Justice. On October 1, 1874, a minute was entered:
"The opinion of the court is that the petitioners have no title
to the lands of Kaonoulu and Kaluapulu, and so adjudge. There is no
controversy about the title of the land at Wailuku, and the
petition for partition of that land is hereby granted and decreed
An opinion filed two days later discusses the title, decides
that the deed alleged by Paakuku is freed from every suspicion, and
repeats the language of the minute. On October 12, it was decreed
that the plaintiffs take nothing by their bill. The supreme court
in the present case expressed the opinion which, apart from the
deference due to it upon a local matter, does not require argument
to support it, that the intention and meaning of the decree of
October 12 was to dismiss the bill on the ground that the
plaintiffs had not the title alleged. It therefore affirmed a
judgment for the defendants, holding that the plaintiffs were
concluded by the former decree. The only point, if any, that can be
argued is that, in general, a bill for partition cannot be made a
means of trying a disputed title (Clark v. Roller,
199 U. S. 541
199 U. S.
), and that therefore the decree should be taken to
be a dismissal for want of jurisdiction, or at least allowed no
greater effect than if it had gone on that ground.
But, as we cannot doubt the import of the decree when rendered,
we are narrowed in our inquiry to the question of jurisdiction in
an accurate sense. Unless we are prepared to pronounce the decree
void for want of power to pass it, and open to collateral attack,
the decision in this case must stand. But there was no inherent
difficulty, no impossibility in the nature of things or for want of
physical power, in the attempt to decide title in the suit of 1871.
And, as was observed at the last term, it would seem surprising to
suggest that the highest court in the Hawaiian Islands did not know
its own powers, or decide in accordance
Page 239 U. S. 505
with the requirements of the law of which that court was the
final mouthpiece. John Ii Estate v. Brown, 235 U.
, 235 U. S. 349
The plaintiffs in the former case in no way protested against the
trial of their title, but, on the contrary, sought relief distinct
from partition, that made the trial necessary. Even if we were
disposed to go behind the decisions of the Chief Justice of the
Kingdom and of the highest court of the territory upon a matter
like this, it would seem to us as unreasonable to hold the
adjudication of title void because partition was prayed as to hold
it void because the decree was made upon a multifarious bill. The
cases where objections to the jurisdiction, though taken in the
cause, have been held to have been waived go farther than we have
to go here. We will not speculate as to how extreme a case must be
to produce a different result; it is enough that this is far from
The defendants in error filed a motion to dismiss which, in view
of our opinion upon the merits, they probably would not care to
press, but which we are not at liberty to disregard. The case is
brought here by writ of error, whereas, it is said, it should have
been brought up by appeal. By § 246 of the Judicial Code of March
3, 1911, c. 231, 36 Stat. 1087, writs of error and appeals from the
final judgments and decrees of the Supreme court of Hawaii may be
taken "in the same manner, under the same regulations, and in the
same classes of cases, in which" they may be taken from the final
judgments and decrees of the court of a state, "and also in all
cases wherein the amount involved, exclusive of costs, . . .
exceeds the sum or value of five thousand dollars." The present
suit comes here under the last clause; at the trial a jury was
waived, and the proposition is that the earlier provisions of the
section do not govern this clause, but that, except when there is a
trial by jury, the cases there mentioned must be brought to this
court by appeal under the act of April 7, 1874, c. 80, § 2, 18
Stat. 27. It is said that
Page 239 U. S. 506
this has been the practice. See, e.g., Wm. W. Bierce, Ltd.
v. Hutchins, 205 U. S. 340
Whether or not the incidental assumption in that decision that an
appeal would lie was correct, we are of the opinion that the
proceeding by writ of error was justified by the plain meaning of §
246. So far as the policy of Congress might permit (see
act of March 3, 1915, c. 90, § 274b, 38 Stat. 956), we should be
disposed to be a little astute to save a party's rights from being
lost through mistakes upon a technical matter in the somewhat
confused condition of the statutes. But we cannot doubt that the
path adopted was right.