The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-10-26

OPINION OF THE COURT BY JUDD. C. J.
Kualana filed her complaint with
the District Court of Koolaupoko,
Oahu, on the 22d March, 1893,
claiming "that Yong Young, defend
ant, is in possession of lands of
plaintiff situate in Heeia, Koolau-
poke, described in Royal Patent No.
1927 by virtue of lease to 80. for
-. years from 49,. at q rental
of -. dollars per annum; that the
interest of said -. in said lease
has been transferred to the defend
APT; that the term of said lease has
rn-ted by the efflux of time, and
chat = Tent upon the termination of
said lease was In arrears and unpaid
and said defendant holds the said
premises unlawfully and against the
rights of the plaintiff, wherefore the
plaintiff prays judgment for the resti-
tuition of said premises and for costs"
The District Court heard the case
on the LIST April. Defendant, through
counsel, asserted orally that he had
title to the land and asked that the
Magistrate decline jurisdiction.
Which plea was overruled and upon
evidence taken on both sides, the
District Court rendered judgment on
the 18th May that plaintiff should
have possession of the land.
An appeal was noted by defendant
In writing on the 18th May to the
Circuit Court, First Circuit, waving
the Jury, but no bond for rent to &C
crue after the appeal was filed,
though the defendant remained In
possession of the land. The Statute,
Sec. $40, Civil Code, prescribes that
where the defendant is proceeded
against for non-payment of rent, and
the Justice decides that the plaintiff
should have possession, the defendant
shall not be allowed to keep posses
sion and take his appeal, unless he
first gives a bond to the --rety or
with Gnod eapd suf;2; that may &C
crue and become que after the ap
peal, provided it shall be finally de-
termined that the plaintiff was en-
titled to the possession"
The plaintiff moved on the 23d
June In the Circuit Court to dismiss
the appeal on the ground of there
being no certificate of appeal show
ing notice of appeal and because no
bond was filed. The motion was
granted and exceptions were taken
and allowed to this Court.
The counsel for defendant con-
tends that no bond was required
of him because this was case
which was not within the jurisdic
ton of the District Court. the de-
PENDANT having alleged title in the
land in himself.
Section 10 Of the Act to reorganize
the Judiciary Department provides
that the District Courts "shall not
have cognizance of real actions nor
actions in which the title to real
estate shall come in question" But
we do not understand, nor was 1t
contended, that this Gusts the Dis
trict Courts of the jurisdiction con-
ferred upon them 10y Secs. 939 to
952 of the Civil Code entitled, Art.
III. OF summary proceedings to re-
cover possession of land in certain
cases." The right of possession IS
In issue in such cases and not the
title. After the judgment of the
lower court entertaining jurisdiction
of the case and awarding possession
TO the plaintiff, the defendant took
the risk of his appeal to the Circuit
Court being dismissed by not filing
the bond required. If it should ap
pear that the District Magistrate was
wrong and the case was not in his
jurisdiction, the case would be dis
missed by this Court and no harm
would have been done him by his
having fled the bond. But if the case
should turn out to be one of which
the Magistrate had jurisdiction, then
the lack of the bond would be fatal
TO his appeal to the Circuit Court and
the case could not be tried on its
merits in that court.
From the admissions of counsel
lWs& from what appears in the tran
script sent up from the lower court,
we are of opinion that the case was
one of which the District Court had
jurisdiction. We only look into the
record far enough to see If the case
was one within the statute of sum-
mary proceedings to recover posses |
sion of land, and we find that the |
plaintiff contended that the lease she |
had made had either expired or had |
been surrendered. Defendant claimed |
that he held valid unexpired lease |
from plaintiff. This shows clearly |
that the question for the lower court |
to decide was respecting the validity |
and existence of certain leases, and |
that defendant did not claim title in
the land except as az tenant of the
plaintiff whose ownership he did not |
deuy.
The cause being within the juris-
diction of the District Court, the
Circuit Court was right in Diminishing
the appeal for want of the statutory
bond.
Exceptions overruled.
J. A. Magoon for plaintiff W. r.
Castle for defendant.
Honolulu, Oct. 10, 1893.