The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1900-10-16
IN THE SUPREME COURT OF THE TERRITORY OF
HAWAII
SPECIAL TERM, july, 1900.
YEE WO r. CHONG LUP YEE.
ERROR CIRCUIT Court, FTrn CIRcuIT
SUBMITTED July 1e 1900 DEorpsp OCTOBER II,
FKEAK Co., GAIBRArrH j., CmcuIT JUDGE STANLEY, IN
PERRY, j.,
OF nepeauer
Sheriff is applicant
Sheriff
proceedings of such
claim
OPINION OF THE COURT BY FREAR. CT.

Certain goods chaes seized by the deputy Sheriff
of Hanae Kauai under alias writ of execution issued by Ee
Circuit Court upon Judgment for $500 obtained by zee We
against Chon Lup zee action of assumpsit on an
appeal District Court whereupon Chun Fu ca
ing owner and Kwong Sing Company claiming to be
mortgages of the property seized notified the Sheriff and zee
and his attorney of their claims and applied the Circuit
Judge for order of nepeader under Section 16S OF the
Civil Laws The Judge ordered that zee Wo show why
the mortgage should not paid first of moneys arising
from the sale execution and that all proceedings be stayed
until the hearing and decision of that question zee Wo de-
murre chiefly the ground that order OF nepeader could
be granted only the application OF the officer who had ezed
the and the application of adverse claimants The
Judge sustained the demurrer The first assignment of error Is
that the Judge erred in this ruling.
Section 176s, Civil Laws reads:
goods chates have been seized in execution by the
High Sheriff. Sheriff. other officer under OF any court
some third person be entitled under bill Of sale,
te mortgage otherwise such goods and chaes by way
of security for debt judge order sale OF the
whole part thereof upon such terms to payment OF the
whole or part of the secured otherwise they he
shall think fit may direct the application of the proceeds OF
sale in such and upon such terms as to such court OF
Judge may seem just
Plaintiff in contends that this section should be read
independent and construed with reference TO the
rest of the statute and rules of ntepeader We do
agree with him. The section part OF the Chapter OF the
Civil Laws entitled lntereade which Is Chapter % OF the
Laws 1876 can Act Amend the Law Relating to Inter
peader The chapter throughout relates to nepeader and
bears out its title This particular section closely
pected with sections Immediately preceding IT. winch
provide that where claim made to any goods or cnatte TAKEN
or intended be taken execution the court or any uo
other officer before after return OF execution or p
OF after brought against the officer call before them
him the party obtaining process and the adverse claimant a
exercise the powers contained elsewhere the Act relating %
nerreader Section 176s would be intended merely
to provide that might be pursued IN proper case OF III
rpeader instituted under the preceding sections Inns cp
was taken from the English statutes Section 116S beng -
and "a Wet c. 12G, - The practice under the Engsh
have been IN accordance with the above con
rco and we find nothing indicate that any other view has
oyer been taken The usual would to be for claim
ants to notify Sheriff. the execution creditor and his
of their claims and then take appropriate action at law IN
case the Sheriff should not yield apply for any order of inter
peade The statute of nerpeader intended to protect
person. such Sheriff who claims no interest against
claimants protect adverse claimant against anohe
Adverse claimants left to their usual appropriate remedies
tt further assigned as the Judge erred in adlud
ing applicants for the order of neeader pay N ad
ton to the regular statutory costs amounting to ST. the eA
penes and occasioned by the stay OF execution
to 1858 made of the cost OF caring Tor a
guarding the property and advertising postpoheeht oi sue
readvertising the sale
The claimants were required give security for expense
&c and the expenses in question could not be awarded as cost
under the ordinary schedule of statutory costs but coa ne
NOT no adudqed under the provisions of the nterpeader act
The Court Judge authorized by Section 10 MAKE
other rules and orders therein to costs ana a oe
NAV anner TO be lust and reasonable and by Section 10
which relates to cases of the present kind where the apPcao
made by the officer, to exercise all or any Oh ~
rovers and authorities herenbefore contained and make sue
rules orders and decisions shall appear just
circumstances the cae and costs OF all such m
be in the discretion of the Court or Judge In nHH Da
o L. r. &c CHI D. Co.'S it was held that an unsuccessful clam
ant hod nav the shes extra possession money caused by ID
claim and that the proper practice that the charges shout
lie paid the first instance by the execution creditor TO the Oh
that tho creditor should have them against the CLAIM
ant although the claimant often ordered to pay them direct
10 the officer IF the statutory provisions above quoted DO NJ
nnlv because this which the application was mao
M an officer we may rely Section 1860 which general az
which authorizes the Court Judge to make all such 9th
rules orders therein costs and all other matters as m
be ust 1t argued that the Judge erred imposing the emu
cost due to the delay in execution upon the claimants 1nasn
as part the delay occasioned by the request OF the
ton creditor for continuance The Judge may nave ac'
of4o- 4bao ua10o of
all costs to the finally successful party he may have tho"
that all costs should be awarded for special reasons IN tins
stance There not enough the record to show that ne
T. indeed NAV be doubted whether his decision appealab
all in view of Section 1771 to which see Sn,tn O. u
supra We may remark that the expense 81 day Oh keep
the property in question: which consisted chiefly OF bags OF
some farming implements and Chinese bullock all OF WI
sold for SIG seems unnecessarily large The total costs
execution appear to have been $2sS45
ia nisSed