The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-04-22
EXECUTION
MUST ISSUE
Supreme Court Majority
Commands Judge
Dickey.
(From Thursdays Advertiser.)

the roandamuS suit or ~. -. Han u
Son, Ltd, VS.. Lyle A. Dickey. Plain
tiff wanted the writ to compel the
respondent, as District Magistrate of
Honolulu, to issue execution, pending
an appeal to the Circuit Court, in a
cause wherein the respondent gave
Judgment for the plaintiff for SS09.40.
The magistrate found there was good
cause for issuing the execution so far
as the appeal was concerned, but de-
MED it on the ground that the law Of
1892 purporting to authorize such is
suance was not applicable to district
magistrates where the amount involved
was over $500. In his answer the
respondent set up the additional point
that the judgment, being for an a
mount exceeding $500, was beyond his
jurisdiction and therefore voidable.
1t is decided by the court that the
latter point was previously settled in
the case of Levers & Cooke VS.. Red
house, where 1t was said: Attorneys
commissions and costs allowed by
statute should not, we presume, be in
cluded in determining the jurisdic-
tional amount. They are not a part of
TIE Cldlll VI VI the ouSu ipi'
In the case under consideration the
Judgment was for $275.91 damages, $l5.-
26 interest. STATS attorneys commits
sions and s345 costs of court. Exclud-
ing commissions and costs, the amount
of the Judgment is decided as having
been within the jurisdiction of the
magistrate.
The court then takes up the law
bearing OH the issuing of executions
by district magistrate. 1t was made
in 1892 and amended in 1908. This law
has proviso to the effect that the
judge or magistrate may issue an exc
cution upon good cause shown, not
withstanding an appeal, "unless the
applicant" shall deposit a bond in not
less than double the amount of the
Judgment, CONDITIONED for the prose-
cution of the appeal without delay
and for the payment or other per-
Torrance of the judgment.
1t was contended by the respondent
that the foregoing proviso did not ap-
ply to cases tried by district magis-
trates in which the amount involved
exceeded $2O-in other words, If it did
so apply, it would be unconstitutional
as unduly obstructing the right to trial
by jury.
The court has no hesitation in hold
ing that the word applicant" quoted
above should be read as though it
were written appellant" no matter
whether the word was purposely used
to denote the party appealing or was
mistake of the copyist. 1t is ad-
mitted further on that If the word was
used to identify the appealing party it
Is IAN unusual term of description"
AS to the other point, the court holds
that the provision in question does not
constitute denial of the right TO
trial by jury and does not unduly OBJ
struct it.
Another objection to the statute pre-
sented by the respondent was that the
condition named, that of a bond in
double the judgment, is not imposed
upon all applicants alike but only upon
some at the mere will of the magis-
trate. This objection the court says
would apply equally to appeals from
circuit judges, and has no relation to
any possible contravention of the sew
zenith Amendment to the Constitution,
providing the right to trial by jury, but
must be based and stand, If at all,
upon the provision of the Fourteenth
Amendment, prescribing that mo State
shall deny to any person within it's
jurisdiction the equal protection of the
laws"
Upon this the court holds that the
statute only gives the magistrate "a
l.. .hnt
cases the bond shall be required, and
goes further by providing that the
bond shall be required only in those
cases in which good cause Is shown for
the immediate issuance of execution,
If this discretion is abused, there IS "a
remedy by appeal. There Is no in
equality In the provision. All are
treated alike who are situated in like.
circumstances" Other conditions of
appeal are quoted which are equally
Objectionable to this one If the objec-
ton 10 II We're sustained,
Another point raised was that this
proceeding was brought against Lyle
A, Dickey" without his official tito Of
District Magistrate" This Is held 10
have boon waived by the respondent
I'm answering a. the merits ana in
proceeding tp "a hcurlns without rdlsT
ing hr point "ln any event" mo
majority aya The petition h capable
or amendment IN thi- rerport' lne
upIulm runrudu lhuHl
l'unn nn amendment as ln ihr UIn'
uI lhe respondent hr.uE Iahul in' NH4 .
uaiH. "a pHWWnmTF Ntll fhlull ~. Ia
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