Argument for Plaintiffs in Error.

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the first judgment in this case entered by any court, was entered in the Circuit Court of Hawaii and that the plaintiffs in error thereupon applied to the Supreme Court of Hawaii for a writ of error to the Circuit Court, which writ of error was granted under date of November 24, 1905, and, on motion by defendants in error to quash the same, was dismissed April 13, 1906, and that judgment thereon was entered September 27, 1907, as of April 13, 1906.

This judgment of the Hawaiian court was, in effect, an affirmance of the judgment of the Circuit Court, and was, for the purpose of a writ of error to this court, a final judgment in the case by the Supreme Court of Hawaii.

The entire record of the case is now before this court, and if it appears from inspection of the record that substantial error has been committed, to which seasonable objection was taken by the plaintiffs in error, this court has the power, to correct and will correct such error. Gregory v. McVeigh, 23 Wall. 294; Fisher v. Perkins, 122 U. S. 522.,

The court may treat the phrase, March 8, 1904, not as the particular date of the judgment, but as descriptive only and surplusage, and will give effect to the apparent intention of the plaintiffs in error to enforce their right to a review of the final judgment in the case by the highest court of the Territory.

The power of the court to review does not depend upon the presence or absence of any specific assignment of error. World's Columbian Exposition Co. v. Republic of France, 91 Fed. Rep. 64.

Rule 35 of the Supreme Court is to the effect that the court will notice plain errors, even though not assigned, and this court has frequently considered such errors. United States v. Pena, 175 U. S. 500, and even when no assignment of errors has been filed. Farrar v. Churchill, 135 U. S. 609; Behn v. Campbell, 205 U. S. 403.

It may be claimed, however, that because the judgment of the Hawaiian court was the quashing of a writ of error on a motion to dismiss, it was not such a judgment as can be re

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Argument for Plaintiffs in Error.

viewed by this court. No limitation as to the kind or character of the judgment to be entered is imposed by act of Congress of 1905, or by the Hawaiian act of 1905, and it is therefore to be assumed that the same rules and practice are to prevail as in cases between Federal and state courts. See Williams v. Bruffy, 102 U. S. 248.

The test as to what constitutes a final judgment to which a writ of error can be taken is whether in entering such judgment the court was affirming or rejecting a claim which the plaintiff in error sought to enforce as a matter of right, or whether it was one which the court in the exercise of its discretion might allow or not. Walden v. Craig, 9 Wheat. 510; Pickett's Heirs v. Legerwood, 7 Peters, 142; Shreve v. Cheesman, 69 Fed. Rep. 785; Whitworth v. United States, 114 Fed. Rep. 302.

In the case at bar the plaintiffs in error claimed the right to a review of the judgment of June 8, 1905, as a matter of right, and set out nine assignments of error, each raising questions of law. Nothing but questions of law were therefore before the Supreme Court of the Térritory. Therefore, its judgment in dismissing the writ of error, which, as we have said, is equivalent to a decree of affirmance, is reviewable by this court.

Judgment dismissing the writ of error was in fact entered September 27, 1907, but of the date of April 13, 1906. This case falls within the United States act of 1905.

Where a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall within the law. Railroad Co. v. Grant, 98 U. S. 398; Gurnee v. Patrick County, 137 U. S. 141. The converse must also be true, that, where a law granting jurisdiction is enacted without any reservation, all pending cases fall within the law.

Even if the writ of error can bring up only the proceedings in the Hawaiian courts subsequent to the entry of judgment of June 8, 1905, the writ should be sustained as the Supreme Court of the Territory in dismissing the writ of error did so upon the ground that all the errors assigned in the petition had

Argument for Defendants in Error.

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been passed on by it on March 8, 1904. But the sixth and .seventh assignments relate to the proceedings in the lower court had since March 8, 1904, and therefore could not have been passed upon by the appellate court.

Mr. Aldis B. Browne and Mr. W. L. Stanley, with whom Mr. Alexander Britton and Mr. Henry Holmes were on the brief, for defendants in error:

The act of March 3, 1905, needs no interpretation with respect to the point here involved. By its express language it takes effect and operates only "from and after its passage."

The final judgment whereof review is here sought was rendered long before its passage. Admittedly no provision for review thereof in this court then existed. No time limit for appeal or review in any higher court was provided. The cause was at an end.

Nor can the act be given retroactive effect in authorizing review of a judgment theretofore made final in the Supreme Court of Hawaii. White v. United States, 191 U. S. 545, 552. See also United States v. American Sugar Refining Co., 202 U. S. 563; Hooker v. Hooker, 10 S. & M. (Miss.) 599, 601; Stewart v. Davidson, 10 S. & M. (Miss.) 351, 358.

While the legislative power to enlarge or restrict remedies exists, it is clearly limited to causes which are then pending, and not to those wherein there has been final judgment and the parties hence dismissed, and with the cause thus put at judicial end. Jensen et al. v. Frieke et al., 113 Illinois, 171, 175; Willoughby v. George, 5 Colorado, 80, 82; Davis v. Menasha, 21 Wisconsin, 491; Merrill v. Sherburne, 1 N. H. 199; Bates v. Kimball, Admr., 2 Chipman (Vt.), 77; Lewis v. Webb, 3 Maine, 326.

So in the case at bar, under the operation of the final judgment of the Supreme Court of Hawaii, now here sought to be reviewed, the rights of the parties became fixed and the property had become subject to the absolute and final disposition prescribed in the tes ator's will. With that property and the

rights created thereunder the community had every right to deal. In short, the cause had come to a final end. See Gilman v. Tucker, 128 N. Y. 190, 204; Greenwood v. Butler, 52: Kansas, 424; Lewis et al. v. Webb, 2 Greenleaf, 326; Weaver v. Lapsley, 43 Alabama, 224; McCabe v. Emerson, 18 Pa. St. 111; People v. Carnal, 6 N. Y. 463; Taylor v. Place et al., 4 R. I. 324.

MR. JUSTICE WHITE delivered the opinion of the court.

In a contest in a Hawaiian court of probate certain documents were held not to have been executed under undue influence, and were admitted to probate as the last will and testament and codicils thereto of Charles Notley. On appeal to the Circuit Court, in term, upon motion of the contestants, a jury was impanelled to try issues of fact embodied in two questions, which substantially required the jury to say whether undue influence had been exerted upon the testator. On the trial various exceptions were taken to rulings on the admission and rejection of evidence, and at the close of the evidence the trial judge granted a motion to instruct the jury to find a verdict sustaining the will.

The verdict was rendered January 28, 1903. On the same day the trial judge signed the following order, which was duly filed on the following day:

"Order for Entering up Judgment.

"Upon the entering up of the verdict on the appeal in this matter,

"It is hereby ordered that the clerk of this court do sign and enter up judgment in favor of proponents of the last will and testament of Charles Notley, deceased, in accordance with said verdict, and the decree admitting said will and codicils to probate is hereby affirmed.

"Done in open court at Hilo this 28th day of January, 1903." On January 27, 1903, the clerk endorsed and filed a formal judgment. It would seem, however, that he did not then sign VOL. CCVIII-28

the face of the judgment, and perhaps did not enter it, as following the date of the judgment is this recital:

"A. S. Le Baron Gurney, Clerk Fourth Circuit Court. "Judgment entered this 28th day of January, 1903.

"(Seal) This 8th day of June, A. D. 1905, as of the 28th day of January, 1903."

The following endorsement is also on the back of the judgment, under the endorsement of the filing on January 29, 1903: "Filed June 8, 1905. A. S. Le Baron Gurney, Clerk." The record is silent as to how these additions to the judgment came to be made.

15

A motion to set aside the verdict and for a new trial having been overruled, the cause was taken on exceptions to the Supreme Court of Hawaii. In that court the action of the trial. court in instructing a verdict was sustained and two motions for a rehearing were overruled, the last on August 2, 1904. Hawaii, 435, 700; S. C., 16 Hawaii, 66. It will be observed that the last action of the court on the application for a rehearing was had nearly a year prior to the clerk's signature affixed to the face of the judgment on June 8, 1905, as of January 28, 1903, and the additional file mark on the back of the judgment made on June 8, 1905.

More than a year after the final action of the Supreme Court of the Territory on the exceptions, that is, on November 24, 1905, a petition for a writ of error to the Circuit Court, with assignments of error, was filed in the Supreme Court of the Territory on behalf of the contestants, praying that court to reverse a judgment entered in the Circuit Court. The petition for the writ recited the order admitting the will and codicils to probate, the appeal to the Circuit Court, the trial upon specified issues of fact, the motion to direct a verdict, the instruction to sign a certain form of verdict, the verdict, the taking of various exceptions, and the overruling of motions for a new trial. No reference was made in the petition for a writ of error to the fact that the exceptions reserved at the trial had been previously taken to the Supreme Court of the