I respectfully dissent. Prior to 1910 one of the provisions of section 84 of the Organic Act was that "no judge shall sit on an appeal or new trial in any case in which he may have given a previous judgment." This inhibition was wide enough to disqualify a judge from sitting in this court in any case in which, as circuit judge, he may have given any judgment, irrespective of whether the appeal to this court was from the judgment which he had rendered or from a judgment which some other judge had rendered. In 1910 the provision was amended so as to read "nor shall any person sit as a judge * * * on an appeal from any decision or judgment rendered by him." This is a very different provision. It is merely *Page 159 that a member of this court shall not sit on the hearing of an appeal from any judgment or decision rendered by himself in a lower court. It does not disqualify him from sitting in the same case in this court when the appeal is from a decision or judgment rendered by another judge, even though the appeal in effect questions the correctness of one or more of the principles of law upon which that judgment was based which the member of this court rendered. The modification of the terms of the Organic Act in this respect was, it cannot be doubted, intentional. It was within the province of Congress to add causes of disqualification and it was likewise in the province of Congress to diminish those causes or to limit them within narrower bounds.
It is well settled that a justice of this 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." In reAh Oi, 13 Haw. 534. It seems to me to be clear that if the questions sought to be presented to this court in the case at bar had arisen, as well they might have, in an equity suit from a decree in which the appeal had been taken to this court, no disqualification would exist simply because, by means of the equity suit or of the appeal from its decree, it was sought to render nugatory the order or orders made in the probate proceeding. In the hypothetical case just stated there would not be an appeal from any decision or judgment rendered by the judge. In the case at bar the order of Mr. Justice Banks appointing Mr. Hoopai as master was made and dated October 7, 1921, and the order appointing Mr. Schnack as successor of Mr. Hoopai was made and dated February 3, 1922. No appeal of any sort was taken or attempted to be taken from either or both of *Page 160 those orders. Mr. Schnack, in consequence, proceeded with the performance of his duties of investigation imposed upon him by the orders of appointment and filed two reports, one in January and one in March, 1923. In June, 1924, another judge, Circuit Judge Andrade, made and entered an order awarding Mr. Schnack a fee of $1500 for his services as master and making that fee a charge against the property of the estate of F.W.K. Beckley. Thereafter, in April, 1924, an order was made in the probate case terminating Mrs. Nakuina's incumbency of the offices of executrix and trustee and appointing the Bishop Trust Company, Limited, as administrator and trustee. In 1924 an equity suit was filed by Mrs. Nakuina, asking leave to withdraw as executrix and trustee, and in December of that year an order was entered in the equity suit permitting her to withdraw and appointing her successor and vesting title to the property of the estate in the Bishop Trust Company. In 1925 that corporation filed its petition for discharge as administrator, alleging inter alia that there were no assets of the estate. It was then, and not until then, that the present controversy arose as to whether Mr. Schnack's fee was a proper charge against the property of the estate and, if it was, as to how provision should be made for its payment. In other words, for three years or more the two orders which Mr. Justice Banks made in the probate case remained wholly unappealed from before the questions arose with respect to the master's fee. Those two orders remain unappealed from to this day. Mr. Justice Banks did not decide that the master should be paid a fee or how it should be paid. The question was not involved or considered in 1921 or 1922. In my opinion the provision of the Organic Act does not apply to the facts of this case. If Mr. Justice Banks were to sit with us he would not be sitting on any appeal from any decision or judgment rendered by him, *Page 161 even though collaterally it is now sought to question the effect or the validity of his appointment of Mr. Schnack.
Bruner v. Brewer, 20 Haw. 617, is not, as it seems to me, a precedent to the contrary. That case came to this court by writ of error. It is true that the writ was directed, technically speaking, to the final judgment entered by another judge and not to the earlier order, made by the judge who later became a member of this court, referring the issues to arbitrators; but it is also a fact that under the express provisions of the statute then in force, as under the provisions of the statutes now in force, a writ of error, although directed technically to the judgment, nevertheless brings up to this court for review "any error appearing on the record, either of law or fact, or for any cause which might be assigned as error at common law." R.L. 1905, Sec. 1871; R.L. 1925, Sec. 2524. In other words, a writ of error was then, as now, a method authorized by law for reviewing any ruling or order made in the cause, even though it preceded the final judgment. It constituted in the Bruner case a direct attack upon the order of reference to arbitrators just as clearly as it did upon the judgment itself. In the case at bar there is no direct attack, by appeal in any method known to our statutes, upon either of the two orders of 1921 and 1922. The attack is purely collateral. The question of jurisdiction can be considered by us in the present proceedings, not because the attack is direct, but because it is of such a nature that it is open for review in a collateral attack. The provision under consideration from the Organic Act does not, as it seems to me, have reference to collateral attacks.
Reservation of questions, under R.L. 1925, sections 2513 and 2514, is not provided by the statute as a method for reviewing decisions already rendered and acted upon but as a method of aiding the trial judge in determining *Page 162 questions concerning which he is in doubt and upon which he has not yet ruled. This was, in effect, the view expressed by this court in McCandless v. Lansing, 19 Haw. 467. In that case the judge presiding at the trial, after directing a verdict which the defendants claimed to be contrary to law, reserved for the consideration of this court the question whether the verdict was contrary to law upon a statement of facts submitted. This court advised the circuit judge "that no question is presented which this court can consider" and gave as its reason that "no question is presented which the judge had not ruled upon." Nor was that decision rendered with reference to any peculiar state of the statute. In essential particulars the statute on reserved questions was in precisely the same language at that date as it is today. The only amendments provided by Act 47, L. 1919, were that the land court was added as a tribunal which could reserve questions and that the element was included, in one section instead of in two sections, that the reservations might be made either on the motion of the trial judge or upon motion of either party. As to what questions could be reserved or under what circumstances, there was no amendment. Honolulu Plantation Co. v. Tsunoda, 27 Haw. 835, was decided, therefore, upon substantially the same statute as was McCandless v. Lansing. In the Honolulu Plantation case it is true that the reserved question was entertained in this court in site of the fact that the trial judge had already expressed an opinion upon the subject involved but that, as appears from the decision of this court, was because reservation of the questions was "practically as a part of the same transaction" in which the opinion had been expressed by the trial judge. In other words, if a trial judge makes a ruling and very soon afterwards, and practically as a part of the same transaction, concludes, because of doubts as to the correctness of *Page 163 his ruling, to reserve the question to the supreme court before his ruling becomes final and is acted upon, he may within the terms of the statute do so; but the proceeding in the supreme court is not a review of an order or decision of the trial judge, for there has been no such order or decision. So, also, when a ruling has been made years before and a formal order has been entered upon it and the order has been acted upon by all parties concerned and new rights appear to grow out of the order and out of its performance and observance and another trial judge, years later, is requested to determine what the rights of the parties are under the old order, the reservation of the question is not an appeal from the earlier order within the meaning of section 84 of the Organic Act providing for disqualification of judges. It involves a collateral attack, it is true, upon the prior order; but it is not an attack by an appeal any more than an attack by a separate action or suit would be.