The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-04-26


/ Its title is - An Act TO Regulate
the Practise in Suits for the Re-
covery Of Personal Property" The
! first section preScribes that 1.-the
/ plaintiff in an action to recover the
! possession OF personal property uaN,
at the time OF issuing the s1mmous,
/ or at ANY time before j~>ue being
| Joined In Such action, claim thc de
| livery tn him ot such property, as
| prNidtd in this chapter" The
| statute thereafter prtseribes the
steps which the plalntitt must take
in order that the property shalt be-
delivered e. him. This process is
entirely distinct from the summons
is served OFT the defendant aud be-
fore Issue is joined. The summons
discloSeS tho plaintlff's claim of title
TO the property, and the object of
the suit is 10 try this title. The
process detailed in the Act Is merely
to enable the plaintiff To obtain i'm
mediate possession of the property
he claims. An action of replevin
or g suit to obtain possession of per-
Sonal property may be begun with
out reSorting TO this Act of 1884 to
obtain immediate possession of the
property, And ii ii is res0rted to,
and the plaintiff obtains possession
of the property, ii the defendant
does not care TO dispute plaintiffs
right he may decline to join issue
in the summons, and the ease may
or may not be tried, at the option
of the plaintiff.
We find, therefore, that the Seiz-
ure of the horse and delivery to the
plaintiff was regular, but that the
service of the summons on defend
ant was not legal, and the Police
Court did not acquire jurisdiction
over the defendant.
1t is claimed by the plaintiff that
the defendant appeared in the case,
and thereby waived all objection to
the jurisdiction; on the contrary, we
find from the record that at the
opening of the ease defendants
attorneys pleaded to the jurisdiction
of the Court on the ground of SER
vice having been made i'll the dis
triet of Koolaupoko. This and
several other motions were over
ruled, and finally plaintiff moved
that the case be heard on its merits,
defendants counsel Directing to
going to trial, as they were ready
to take an appeal on points of law
but the case was set for hearing on
its merits. 1t is true that defend
ants attorneys did file a motion on
October 18th, 1891 two days before
the first hearing of the case to have
the matter heard as soon as possible
but it is clear to US that defendant
was compelled to join issue with
plaintiff on the merits, but relied on
his plea TO the jurisdiction and
other motions to dismiss. We do
not consider that this was such an
appearance as would act as waiver
of the necessity of legal service
on the defendant or of the objection
as to jurisdiction.
In regard TO the fourth point, this
has been settled in Stone VS.. Allen,
8 Haw., els. The Court there held
that sc appeals on points of law can
be taken to a Circuit Judge at
Chambers and to the Intermediary
Court of Oahu" Section 1905 of
the Compiled Laws taken in con-
nection with the Act % To Abolish
the Office of Circuit Judge of the
Island of OAHU" Compiled Laws,
page 255, and also Chapter %, Laws
of 1884, gives this right of appeal.
We therefore override this last ex-
ception.
The judgment of the Court is,
that the case is RENTED to the
Police Court in order that the sum-
mons may be legally served upon
defendant and thereafter tried. If
this cannot be done by reason of
defendants living out of the dis
| trict of Honolulu, then the defend
ant may, at his option, bring an
action to recover possession of the
/ horse.
We suggest that the delay in this
/ case would have been obviated if
/ the plaintiff had taken out new
summons and had it served on the
| defendant while he was within the
| jurisdiction of the Police Justice of
Honolulu.
Meanwhile the plaintiff having
obtained the legal possession of the
horse, it must remain with him
until otherwise ordered by a COM
petent court. If the defendant dis
putes the right of the plaintiff tC
the horse he can easily put himself
where the summons from the Police
Court can be legally served on him,
or he can accept service thereof and
go to trial again.
Plaintiff must pay costs.
/ J. A. Magoon for plaintiff Messrs
Johnson, Barenaba and Kaulia fOr
defendant.