
    MABEL CHANG KEALOHA AND JACQULYN ARRUDA, A MINOR, BY HER SUBSTITUTED NEXT FRIEND AND GUARDIAN AD LITEM, DONALD ARRUDA v. RAYMOND M. TANAKA.
    No. 4101.
    January 21, 1960.
    Marumoto, Cassidy, Wirtz, Lewis, JJ., and Circuit Judge Mizuha in Place of Tsukiyama, C. J., Disqualified.
   Per Curiam.

This case was previously before this court on plaintiffs’ appeal from a judgment of the circuit court in favor of defendant. On July 25, 1958, the case was remanded to the circuit court for further proceedings, to wit, for consideration and action upon plaintiffs’ motion for new trial in accordance with the opinion of this court reported in 42 Haw. 630. On July 28, 1958, without any hearing after remand, the circuit court entered an order granting plaintiffs’ motion for new trial. The case is again before this court, on defendant’s interlocutory appeal, duly allowed from that order.

Under the mentioned opinion, defendant was entitled to a hearing in the circuit court after remand, first, on the question of diligence; second, on the question as to whether the separation of the jury or the consumption of liquor by the jurors during deliberation constituted prejudice as a matter of law; and, third, on the question as to whether there was actual prejudice from the separation of the jury or the consumption of liquor by the jurors during deliberation, if the law is that actual prejudice from such conduct of the jurors must be shown. Although we have no doubt that the circuit court acted in good faith in entering its order, the order cannot stand inasmuch as defendant was not accorded a hearing after remand and before its entry.

Frank D. Padgett (Robertson, Gastle \& Anthony with him on the briefs) for defendant-appellant.

Kenneth E. Young (also on the brief) for plaintiffsappellees.

It is unfortunate that there is a delay in the final disposition of plaintiffs’ motion for new trial. It is suggested that, upon the receipt of the mandate on this appeal, the circuit court set this matter for an early hearing. If there should be another appeal from an order of the circuit court on plaintiffs’ motion for new trial, this court will advance its hearing of such appeal. The procedure at the hearing to be held in the circuit court, such as whether it shall be completely de novo or whether the evidence taken at the prior hearing may be used, shall be within the discretion of that court.

Reversed.  