The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1903-11-27
FITCH WAS
IN ERROR
A Fatal Defect in Writ
Costs Last Chance
for His Fee.

Thomas Fitch has finally lost in his
attempt to save his attorneys fee ior
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 Su-
preme Court dismisses the writ OF
error of Thomas Fitch. plaintiff in err
ror, VS.. Edward NJ. Watson, next
friend of Rebecca 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 writ of error on
the ground that no such suit or cro-
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.
specially in his own behalf" and pre-
scented a motion to quash the writ is
sued in this cause on two grounds,
namely, a Because he is not now and
has never been party to such bro
ceeding as that described in the writ
of error the notice or the citation
served on him. C2) Because there is
not now and never has been bending
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 return to the within writ to
me directed, / hereby certify that
there is not now pending, nor has
there ever been pending. before n 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
was a mistake in the description of the
cause or the parties, although it was
suggested by the attorney for the
plaintin in error, at 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 re-
quest was made to be allowed to
amend the writ in these particulars.
The facts supporting this suggestion
do not appear of record nor are thew
set forth in written motion supported
by affidavit as required by Rule 6 of
this court. Nor does 1t appear that
the writ would have been amendable
even If this showing had been made.
We could not substitute 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 n writ of error in
civil cases issues as n 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 n deceased pers =" lSection
li4S, Civil Laws). 1t h ; been held
that it is not the duty oil the clerk to
prepare the writ and that the attorney
for the party seeking the writ should
prepare II and see that it is issued"
Cabin VS.. Widemann, Haw. 1913, 1850.
If there was n 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
plant II left to bear the burden of his
own error, II any.
The motion should be granted and
the writ dismissed.
II iS an nriaral