The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-04-10

| OPINION OF THE COURT BY FREAR, J.
This case comes up on exceptions
| to ruling of the Circuit Court dis
missing defendants appeal from the
District Court of Honolulu on the
ground that the appeal bond was
made payable to the plaintiff instead
of to the Clerk of the Court. The
statute (Sec. 6S, ca. LVII, Laws
1922 calls for a sufficient bond" for
s.costs further to accure" without de
signaling to whom it should be made
payable. 1t 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 obll-
gee should be in bonds given on ap
peal to the Circuit Court, as there Is
in cases appealed to the Supreme
Court, yet on general principles, in
the absence of statute or rule to the
contrary. a bond should be made
payable to the party who is to be
secured. This seems to have been
the view taken in Nakuaimano v.
Achoi, 5 Haw. sol, where the Court
said that the bond for costs to accure
fled on exceptions to an order deny
ing or granting motion for new
trial should be made payable to
the Clerk of the Court, and not
to the plaintiff. But In
Joliva v. Kaulukou, z Haw
731, the majority of the Court, with
out referring to Nakuaimano v.
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 requir
ed by the Rule In Kaheana v.
Nalimu, 8 Haw. 227, the Court, refer
ring to Joliva " Kaulukou, said that
the bond filed with motion for a
new trial, which if filed by defend
rendered, was required to be condit-
toned against disposition of property
as well as for payment of costs,
should be ''to the appellee and not
to the Clerk, as the bond for costs
may be-" In this case and also In
Kaniku " Monsarrat, 8 Haw. 229, IN
which also reference was made to
Joliva v. Kaulukou, 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 obiter dicta, the
drift of which, however, Is that
where bond to secure 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 con 3itions unnecessary, as
where the Judgment Is for the pos
session Of land only without damages.
This rule secures uniformity and GER
tainty in practice and should be ad
hered to- The bond In this case
being held insufficient, the irregular
ity could not be remedied by allow
ing a proper bond to be substituted.
The filing of a proper bond within
the proper time is a statutory re-
quirement, which cannot be set aside
Of hn ~
The exceptions are overruled.
E. Johnson for plaintiff; c.
Creighton for defendant.