The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-04-10
OPINION OF THE COURT BY FREAR, J

! OPINION OF THE COURT BY FREAR, J.
This case comes up on exceptions
to q ruling Of the Circuit Court dis
missing defendants appeal from the
District Court Of Eouolulu on the
ground that the appeal bond was
made payable to the plaintiff instead
OF to the Clerk of the Court The
statute (Sec. IS. Gu. LVII, Laws
1892 calls for sufficient bond" for
costs further to accure" without de
signaling TO whom it should be made
payable. II seems TO US that the
obligee of bond for costs should be
the person TO whom the costs are
payable, namely the Clerk of the
Court. Such has long been the
practice here under the former Rules
of the Supreme and Circuit Courts,
and although there is not at present
any Rule designating who the obi
gee should be in bonds given on ap
peal to the Circuit Court, as there is
IN cases appealed to the Supreme
Court, vet on general principles, in
the absence Of statute or rule TO the
contrary, q bond should be made
payable to the party who is to be
secured. This seems to have been
the view taken in Nskusimano V.
Achoi. ) Hsw. 591, where the Court
said that the bond for costs TO accure
fled on exceptions to an order deny
ing CT granting a motion for new
trial should be made payable to
the Clerk Of the Court, and not
to the plaintiff. But IN
Jolivs V. kaulukou, Haw
73l. the majority of the Court, with
out referring to Nakuaimsno '.
Achoi, expressed an opinion that
such bond should be to the appellee.
This view, however, was based on the
assumption that such bond should be
conditioned against disposition Of
defendants property as well as for
payment of costs, IN which case 1t
ought to have been to the plaintiff
since he was the party chiefly inter
ested, and only one bond was reguir
ed by the Rule In ksheans v.
Nalimu, s Haw. 227, the Court, refer
ring to Joliys '. ksulakou, said that !
the bond filed with motion for a
new trial, which if fled by defend
ant against whom q verdict had been !
rendered, was required to be eondit- |
toned against disposition of property |
as well as :or payment of costs, !
should be ''to the appellee and not |
to the Clerk, a. the bond for costs |
may be- In this case and also in |
Ksniku Y. Monsarrst, S Hsw. 229, in |
which also reference was made TO |
Jolivs v ksulukou, the Court were !
of the opinion that the bond might |
properly be made to the appellee al |
though, under the peculiar circum
stances of those cases, the condition /
against disposition Of property was ,
deemed unnecessary.
The remarks OF the Court upon /
this subject in most of these cases /
were Of the nature of o6iter dictd, the |
drift OF which, however, is that |
where bond to secCre costs alone is
required by statute or rule OF Court |
it should be made to the Clerk, but |
where it IS required for security |
against disposition Of property as
well as for payment of costs, it !
should be to the appellee, even |
though particular circumstances may
make the insertion of the first Of |
these conditions unnecessary, as
where the Judgment Is for the pos |
session Of land only without damages. |
This rule secures uniformity and Ger
tsinty IN practice and should be I'D |
hered to- The bond IN this case /
being held insufficient, the irregular
ity could Lot BE- remedied by allow |
ing a proper bond to De substituted |
The fling OF proper bond within
the proper time IS statutory re
quireueut, which cannot be set aside
IN the discretion of the Court
The exceptions are overruled-
E johnson for plaintiff; G.
Creighton for defendant.
Honolulu. AuriI s. 1891