The Hawaiian gazette., 1893-10-31
OPINION OF THE COURT BY JUDD, c. J.

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 80. at rental
of 80. dollars per snnum; that the
interest of said 80. in said lease
has been transferred to the defend
ant; that the term of said lease has
terminated by the effiux of time, and
that the rent 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 prsys 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 Nav 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. 949, 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 bond to the plaintiff
with good and sufficient surety or
sureties to pay all rent that may ac
crue and become due after the APP
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 a 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 it
contended, that this Gusts the Dis
trict Courts Of the jurisdiction con-
ferred upon them by Secs. 939 to
952 of the Civil Code entitled, art.
XL. OF summary proceedings to re
cover possession of land il 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 APP
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 filed 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
10 his appeal to the Circuit Court and
ihe case could not be tried on its
merits in that court
From the admissions of counsel
and from what appears in the tran
script sent up from the lower court,
re are of opinion that the case was
,ne of which the District Court had
We only look into the
'ecord far enough to see if the case
vas one within the statute of sum |
nary proceedings to recover posses I
ion of land, and We find that the
plaintiff contended that the lease she
lad made had either expired or had
,een surrendered. Defendant claimed
hat he held valid unexpired lease !
rom plaintiff This shows clearly
hat the question for the lower court 2
o decide was respecting the validity
nd existence OF certain leases. and Z