The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-04-14

. Judgment of a District Magistrate,
shall operate as an arrest of judgment
and stay of execution; provided, how
ever. shat a District Magistrate may,
upon good cause shown, allow exeeu-
ton to issue pending such appeal,
unless the appellant shall within
such time as shall be allowed by the
Magistrate. deposit a bond in such
amount and with such surety as shall
be approved by the Magistrate; condi-
toned for the prosecution of the APP
peal without delay and for the pay
ment or of the performance, as the case
may be- of the Judgment in the APP
pellate court.
From the. wording of the statute, it
appears that the appellant is entitled
to at least an opportunity of staying
the issuance of the writ by the fling
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 Magh cate 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 fling 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
laws in line eight of said section OF
a. -
word appellant But even then,
should the Act be treated as void, the
Magistrate could have acted under
which provides that execution may is
sue pending appeal upon good and
sufficient cause being shown.
The issuance of execution pending
appeal is, however, the exception and
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 were 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
a writ of possession or execution upon
a mere ex parte application and with
out notice of hearing as far as they
were 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 a writ should
the appelIa at file an approved bond. The
fling of the bond itself absolutely, I'M
der those circumstances. stays execu-
ton. And as far as the exercise of
discretion is concerned, in the District
Ma gistrate, 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 ap-
pellee Should such an arbitrary action
of a District Magistrate receive rec
ignition, rights of appellants would be
to. an extent that would be
appalling, and put a premium on ex
parte proceedings contrary to the gem
esis of a free government.
The action of Mr.. Aiu, however, must
be considered in the light of all the
facts and circumstances
Of the case. Upon Mr.. Nahale's refus-
fJ,c xtyrif Of If
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-
tensihly 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
'esentative of the High Sheriff is pres
INT then and there ready and willing |
% execute the writ presented to the !
Magistrate by the Treasurer and the
attorney for the Company. Previously
he propriety of the issuance of the
writ depended upon it's service. It
vas merely a question of the service
# the writs previously secured There
ofore two writs had been issued, and
service upon one had been refused.
But now the District Magistrate is not
'nly following the suggestions of the
attorney for the Company, but all
question as to the propriety of his is
uance of the writ is removed by the
presence of the Deputy High Sheriff
f Hawaii, higher in sphere of knowI-
dge and activity than the Magistrate
himself. and perfectly willing to serve