The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1903-11-26
FITCH WAS
in ERROR
A Fatal Defect in Writ
Costs Last Chance 5
for His Fee.

Thomas Fitch has finally lost in his
attempt to save his attorneys fee for
services in the suit of Rebecca Panee
to get rid of j. A. Magoon as her
guardian. BY unanimous opinion,
prepared by Justice Galbraith, the SUI
preme Court dismisses the writ of
error of Thomas Fitch. plaintiff in err
ror, VS.. Edward M. Watson, next
friend of Rebeeca Panee, defendant in
error. According to the decision, all
the error was the plaintiffs, as the
writ referred to no suit that appeared
on the records. Fitch was REPRESENTED
in the appellate court by w. S. Flem-
ing, while Watson appeared in person.
Following are the syllabus and the
text of opinion:
THE SYLLABUS.
A motion to quash a writ of error on
the ground that no such suit or 2ro-
ceeding as that described in the writ
is now or ever was pending in the
court to which it is directed, being
supported by the return of the clerk
and not controverted, is granted and
the writ dismissed.
OPINION BY GALBRAITH.
The defendant in error appeared
specially in his own behalf and pre-
scented motion to quash the writ is
sued in this cause on two grounds,
namely, Cd Because he is not now and
has never been a party to such pro-
ceeding as that described in the writ
of error the notice or the citation
served on him. (2) Because there is
not now and never has been pending
before the Circuit Judge of the First
Circuit, at Chambers, in Probate, any
such proceeding as that described in
the writ of error.
The return to the writ made by the
Clerk of the First Circuit Court is as
follows:
LAS a return to the within writ TO
| me directed, 1 hereby certify that
| there is not now pending, snor has
there ever been pending, before a Cir
cult Judge of the First Circuit Court,
| in Probate or otherwise, any such ac-
ton or proceeding as that described in
and designated by said writ"
This return is not controverted nor
is there any showing made that there
1
cause or the parties, although it was
suggested by the attorney for the
plaintiff in error, ait the oral argument
that there was a mistake in the name
of the parties and in the title of the
| cause as set out in the writ and a re-
quest was made to be allowed tC
amend the writ, in these particulars
| The facts supporting this suggestion
do not appear of record nor are thew
set forth in a written motion supported
! by affidavit as required by Rule OF
| this court. Nor does it appear that
| the writ would have been amendable
even if this showing had been made.
We could not substitute a new writ
| for the defective one on this applica-
| ton for permission to amend. This is
sufficient reason for denying the re-
quest.
Under our statute writ of error in
| civil cases issues as a matter of right
upon application to the clerk of the
court, by ANY party to the original
cause or of any personal representa-
tive of a deceased person" (Section
| 144S, Civil Laws. 1t has been held
that it is not the duty of the clerk to
prepare the writ and that the attorney
for the party seeking the writ should
| prepare it and see that it is issued. u
| Cabin VS.. Widemann, Haw. 1873, 1850
| If there was a mistake in the prep
aration of the writ issued in this cause
either in the name of the parties, the
| title of the case, or otherwise, the
| plaintiff in error, who was acting as
his own attorney, is alone responsible
for it and has no just cause of com
| plaiht if left to bear the burden of his
| own error, if any.
The motion should be granted and
the writ dismissed.
1t is so ordered.