The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1886-11-16

a1ds--In Banco. October Term, 1886.
ANTOINE DE FRAe vs.. MARY ADAMS Elk
EcrrR1x OF WIN. ADAMS, NJ. PAIKo
GARN1sHEE.
r-rr,nr -r-pD G. J. McuLLY AND PRESTON J. J.
,Biaiou ot- The Court per JUDD, c. J.
The plaintiff appealed, on points OF
law. from a judgment of the Ponce
Justice OF Honolulu, sustaining de-
murrer TO the complaint.
The plaintiff presented to the Pollce
Justice q written complaint in as
sumpsit on a promissory note of VIM.
Adams. containing prayer for judg-
meut. but not containing request to
the Court to insert IN the process q
direction to the officer to leave copy
Of the process with the garnishee and
10 summon him to appear and dis
close on oath whether he had property
If the defendant in his hands or was
indebted to her, etc.
This Is required by Sec. l of the
Act to consolidate and amend the law
relating to the garnishee process.
Compiled laws, PIP. 279 and $50.
But the Police Justice issued the
writ in the ordinary form and the gar
nishee appeared.
The first question raised is whether
the complaint is sufficient to warrant
the issuing Of the process. We think
not.
The argument is made that as the
law. Sec. 921 Of the Civil Code al
lows the District Justice Ito cite par
ties by oral message or in writing"
and these justices are not confined to
forms, the garnishee process from a
District Court need not be In writing
and q J0rtj0ri the request for such pro.
cess need not be in writing. But Po-
lice Courts cannot cite by oral mes
sage: they are required to issue sum-
mons
See Sec. 1874 and sos, Civil Code.
Aud we are of the opinion that the
Garnishee Act requires a written pc
tition when the power of any Court is
invoked to tissue the garnishee process.
Sec. ID Of the Garnishee Act pre-
scribes that "the provisions of this Act
and the powers conferred therein shall
extend to all the Common law Courts
of this Kingdom, according to their
jurisdiction as at present or in future
arranged"
This Act gives a special remedy to
suitors. and this Sec. Ii being subse-
quently enacted to the general law
defining the duties of the District and
Police Courts impose, we consider, a
limitation upon them in this respect.
Whatever Court may be invoked to
issue this peculiar statutory process,
be the same Court of record or a
Court not Of record, the request must
be made in the method indicated in
the Act itself, that is, by inserting in
the petition for process a request that
summons to the garnishee may is-
sue.
In theN'ourt's notes of record the
petition for process need not be sep
arately made, but it may be incorpo-
rated in the statement of claim in the
body of the summons, as is now the
usual practice we believe We are
strengthened in our view by Sec. IA
Of the Act which requires that Sec. III
shall be printed or written conspicu-
ously on every summons issuing out
Of any Court of this Kingdom which
may be intended to be served on any
alleged attorney, factor, trustee or
debtor Of defendant in any suit. In
the case at bar the plaintiff fled a
written petition and the summons re
quired the defendant to answer the
demand of plaintiff ''as per declara-
ton attached hereto made part
hereof"
This declaration as we have seen
contained no prayer orproeess against
the garnishee, and such process should
not have issued.
The next question is whether our
law recognizes the principle that a
person intermeddling with the estate
Of a deceased, is responsible for the
debts as an executor de son tort. There
j. nothing in the complaint to show
that defendant, Mary Adams, acted as
executrix in her own wrong, and the
note which is sued upon was executed
by William Adams deceased. The
laws Of this country protect an admin
istrator or executor from suit until
certain formalities are complied with
which are substantially, that the claim
must be presented 10 the administra
tor for allowance before the six months
notice to creditors has expired and
suit must be brought on the claim
within two months after rejection.
Compliance with these requirements
must appear in the complaint.
But counsel for plaintiff say thatas
these conditions do not exist in this
case. they could not be alleged, and
that for the protection of creditors the
Court should hold that a person in
termeddling with an estate should be
liable to creditors.
The statutes Of this country allow
creditor of a deceased person to apply
for administration