The Pacific commercial advertiser., 1893-04-20

OPINION OF THE COURT BY JUDD, C j.
The substantial facts of this case
we find to be be as follows: On the
10th August, 1892, the petitioner
was arrested on charge of selling
spirituous liquors without license.
He deposited cash bail 500 with
the Deputy Sheriff. The case was
heard by the respondent as District
Magistrate of Hama, Maui, on the 18th
and 18th of August. The Magistrate
found petitioner guilty, and on the
18th August sentenced him to pay a
fine of 500, and costs $7.40. The
bail money was handed by the
Deputy Sheriff to the Magistrate as
the fine imposed, the petitioner paid
the costs, $740, and his attorney, s.
W. Kaai, Esq, announced to the
Court: "We will appeal" and paid
$1.10, the costs Of the certificate of
appeal.
There was some conversation be-
tween petitioner and his attorney as
to the Court to which the appeal had
better be taken, Serene wishing it
to go to the Circuit Court to be held
at Lahaina in December, and Mr..
Kaai preferring it to GO to Circuit
Judge Kepoikai at Chambers. MIR.
Kaai says he preferred the latter
Court as his license permitted him to
practice there, but not in the Circuit
Court. This conversation was not in
the hearing of the Court. The De-
putty Sheriff and the Magistrate both
say that no Court was designated as
the one to which the appeal was to
be taken MIR. kaai then stated to
the Court that he would tell the
Court within the statutory five days
which Court he appealed to. Five
days are allowed by law in which to
note an appeal, which must be per-
fected within ten days from the judg
ment. This time would therefore
expire on the 25th August. On the
9th Mr.. Kaai came to the Magistrate
to complete his appeal. The Magis
trate told him the time had expired,
and declined to grant the certificate.
On the Both Mr.. Kaai took back from
the Magistrate the $1.10 costs of ap-
peal certificate, and receipted for it.
This he had no right to do; but later
on be rendered this sum to his client,
the petitioner, who declined to re-
ceiye it. At the end of the month
the Magistrate got the 500 fine from
the Deputy Sheriff, who had been
holding it as bail for the further ap-
pearance of the petitioner on appeal,
and remitted it to the Treasury.
The writ was sued out on the 21st
March last. On this showing we are
asked by the petitioner to order the
District Magistrate to grant the ap-
peal to the Circuit Judge at Cham
bers, on the ground that the peti-
toner had done all that was required
OF him to entitle him to his appeal,
aud that he should not suffer from
the negligence of his attorney.
We cannot agree with this. An
attorney is the mouthpiece of his
client, the agent witch the Court and
the client look to in the transaction
of business before the Court. A Legal
right lost by negligence of an attor
ney cannot be restored by the Court
Mr.. Kaai should have designated the
Court to which the appeal was in
tended to be taken. He gives nc
valid excuse why he delayed this
until the ten days had elapsed.
It is always matter of regret
when the Court is unable, from neg
ligence Of an attorney, to do justice
to party. But the statute respect
ing appeals was not complied with
and we cannot make shipwreck of The
law on account of the hardship O
this case. A party injured by the
negligence of his attorney has hi
remedy in civil action.
We find that the respondent hal
shown sufficient reasons for refusing
to grant the appeal, and therefore
dismiss the complaint.
G. Creighton for petitioner; Attor
ney- General w. o. Smith for respon
dent.
Honolulu, April 11th, 1893.