
    HENRY LAI HIPP v. THOMAS M. CUNNINGHAM.
    No. 1720.
    Appeal from District Magistrate of South Hilo.
    Submitted November 12, 1926.
    Decided November 29, 1926.
    Perry, C. J., Banks and Parsons, JJ.
    Appe^ae and Error — motion for new trial — jurisdiction.
    Where a general appeal is perfected from a district court to the circuit court the district magistrate is deprived of jurisdiction to grant a new trial.
   OPINION OF THE COURT BY

BANKS, J.

This is an appeal under the statute from the district magistrate of South Hilo on points of law. The appellee filed a motion to dismiss the appeal on several grounds. Inasmuch as the appeal was also submitted on its merits we prefer to decide the case on that submission rather than on the motion to dismiss the appeal.

On July 9, 1926, the plaintiff Lai Hipp, appellee, brought an action in replevin in the district court of South Hilo against the defendant Thomas M. Cunningham, appellant. Upon the trial of the case the. district magistrate on August 2, 1926, rendered judgment in favor of the plaintiff. On August 6, and within the time allowed by law, the defendant filed a motion for a new trial setting forth several grounds, which motion was heard and overruled by the district magistrate on August 17. Thereafter the defendant appealed to this court on points of laAv, the points of laAV being the refusal of the magistrate to grant the motion for a new trial on the grounds therein set forth. BetAveen the filing of the motion on August 6 and its presentation to the district magistrate and his action thereon on August 17 the defendant perfected a general appeal from the original judgment rendered against him on August 2 to the circuit court of the fourth circuit. The question presented to us, therefore, is whether the taking of the appeal removed the case from the district court to the circuit court and thus deprived the district magistrate of jurisdiction to "subsequently act on the motion for a new trial. We are clearly of the opinion that it did.

C. S. Carlsmith for plaintiff.

D. E. Metzger for defendant.

The law on this subject is settled by the decisions of this court in McCandless v. Carter, 18 Haw. 218, and Kahai v. Kuhia, 11 Haw. 3.

The judgment of the district magistrate is affirmed.  