The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-04-15

of the bond required by the statute.
That right is granted him irrespective
of the fact of whether or not good
cause Is shown to the Magistrate by
appellee for the Issuance of the writ.
Should the District Magistrate, upon
proper notice of motion and regular
hearing thereon decide that good cause
has been shown by the appellee for the
issuance of the writ still the appellant
has an opportunity to stay the issu-
ance of the writ by the filing of the
bond.
1t may be said that Section II of
the Act which we are herein seeking
to interpret Is uncertain and unintelli-
gible. and therefore void, by reason Of
the appearance in the promulgated
| laws in line eight of said section of
the word applicant" instead of the
word appellant" But even then,
should the Act be treated as void the
| Magistrate could have acted under
Section 1895 of the Civil Laws of 1897,
which provides that execution may is
sue pending appeal upon good and
| sufficient cause being shown.
The issuance of execution pending
|
not the rule. Common law and COM
mon sense dictate that an appeal from
a judgment of an inferior court stays
execution, and where an exception to
| the rule gives an extraordinary right
of this character, the party against
whom the extraordinary right is eXer-
cised by the District Magistrate should
receive, and is entitled to notice of the
application by the appellee for the is
suance of the writ. If that We're not
SO, then the statute. providing that an
| appeal operates as a stay of execution
| amounts to nothing. And defeated
litigants would be prevented and
| harassed from taking and perfecting
appeals by the arbitrary action of a
District Magistrate in the issuance of
writ of possession or execution upon
mere ex parte application and with
out notice of hearing as far as they
We're concerned and pending their APP
peal. The statute calls upon the Dis
| trict Magistrate to exercise a sound
discretion as to whether or not good
cause is shown for the issuance of the
writ pending appeal But absolutely
no discretion whatever is reposed in
him in the issuance of writ should
the appellant file an approved bond. The
filing of the bond itself absolutely, un-
der those circumstances stays eXecu-
ton. And as far as the exercise of
discretion is concerned, in the District
Magistrate, as to whether or not good
cause is shown, how can it be possible
that that discretion be exercised upon
the mere ex parte showing of the APP
pellee. Should such an arbitrary action
of a District Magistrate receive rec
ognition, rights of appellants would be
jeopardized to an extent that would be
appalling, and put a premium on eX
parte proceedings contrary to the gem
ess of a free government
The action of Mr.. Aiu, however, must
be considered in the light of all the
surrounding facts and circumstances
of the case. Upon Mr.. Nahale's refus-
al to serve the writ of March 18th, it
was evidently the intention of that
gentleman, as well as the District Mag
istrate, to refer the whole waiter to
High Sheriff Brown, at Honolulu. And
the next thing that occurs follows os-
tonsihly in logical sequence as an an
swer to that reference-the Deputy
High Sheriff, the Treasurer of the Ka-
piolani Estate, plaintiff in the action,
and the attorney for the Company APP
pear upon the scene. And the Treasur-
er as we'll as the attorney demand
what previously had been granted by
the District Magistrate, but action
thereon refused by the Sheriff of the
District, while at the same time the
superior of that Sheriff and the rep
resentative of the High Sheriff Is pres
ent then and there ready and willing
to execute the writ presented to the
Magistrate by the Treasurer and the
attorney for the Company. Previously
the propriety of the issuance of the
writ depended upon it's service. 1t
was merely a question of the service
of the writs previously secured. There
tofore two writs had been issued, and
service upon one had been refused.
But now the District Magistrate is not
only following the suggestions of the
attorney for the Company but all
question as to the propriety of his is
suance of the writ is removed by the
presence of the Deputy High Sheriff
of Hawaii, higher in sphere of knowl-
edge and activity than the Magistrate
himself, and perfectly willing to serve
the writ which the Treasurer of the
Company, by its attorney, presents to
the Magistrate for signature. And the |
Magistrate evidently came to the con-
clusion that wheretofore a writ issued
under exactly similar circumstances |
was refused service by the Sheriff of |
the District, and there now being pres |
ent representative of the High Sher-
IN, who must know all the facts of the
case. and with that knowledge was
willing to serve the writ. everything
In consequence must be all right, and
he was doing something which was
acquiesced in by those OF authority.
Mr. Chillingworth. according to his
own statement, made to me, was sim
ply acting In the capacity OF a minis
terial officer. Whether Mr., Brown
knew, or not, that the writ was TO be
secured upon an ex parte showing Ii