The Hawaiian gazette., 1906-10-09
A TWENTY
CENTS CASE


Court. written by Justice Hartweii al
firms the Judgment OF the Third Cir
cult Court In the case OF NJ. +. Scot
w. a. i. Linden. on plaintiffs wri
of error.
Plaintiff sued defendant for 500 70
use and occupation OF certain premise
held by plaintiff under an assignment
of lease. dated March 49, 1904. HI
7 averred that he had allowed defendart
permission to live in the house anC
have the same privileges as he had en-
joyed prior to the date just mentioned
but without naming the rental. or
August 10 he notified defendant that
the parole tenancy was terminated and
he claimed $50 for use of the dwelling
stable and pasture for one horse, also
4 $40 for use of laborers' quarters for
\ housing fifty laborers.
The district magistrate, who first
tried the case, having given judgment
for the plaintiff for 500 on Tuesday,
the defendant filed notice of appeal on
the following Monday. The denial of
plaintiffs motion to dismiss the appeal
because the notice was not filed with
in five days after judgment is assign
ed as error. Judge Matthewman held
that the fifth day being Sunday was
excluded by law He heard the case,
jury being waived, and. on November
20, 1905, filed an opinion dated Novem-
Der 25 in which, upon findings set
forth. he awarded 20 cents damages to
plaintiff.
A motion for new trial filed by
plaintiff was ordered struck from the
files, because not made within ten days
after the decision, which ruling the
plaintiff assigns as error. Other errors
assigned relate to the findings of the
trial court. The syllabus of the appel
late courts decision lays down the law
thus:
Sunday is not included in the five
days within which a notice of appeal
may be filed. but it may be filed upon
the following day.
1.-The findings of the court, jury be-
ing waived, being held to be sustained
by the evidence and by the plaintiffs
pleadings, held: That even if the mo-
ton for new trial could properly be
filed more than ten days after the fill
ing of the decision, but within ten days
after the entry of the judgment, the
plaintiff was not prejudyced by the rel
fusal of the court to consider the mo-
ton"
u. w. Cathcart for plaintiff, Thomp-l
sbn & Clemens for defendant.
( JUDGE KEPOIKAI REVERSED.
4 Two cases, entitled Frank G. Correia |
US. Tam Chong, alias Tam Chung. and
Tam Sing Kong, were decided by the |
Supreme Court yesterday. One was a
writ of error to the judge of the Sec
3ond Circuit, the other an appeal from
the same judge. Justice Hartwell |
wrote the opinion in each case.
Correia had obtained a judgment by
default against Chong on March Is,
1905, for .o32.97. Choug made a con-
veyance of land to Kong, for the con-
sideration of $3.50, dated March 16,
acknowledged March 20 and recorded
April 8. Correia brought bill in
equity to set aside the deed, averring
that 1t was made "in contemplation of
the judgment and execution and that
the defendants combined for the pur-
pose of preventing the plaintiff from
obtaining satisfaction OF the judgment.
Part of the evidence at the trial
was that Chong and Kong lived in the
same house and both worked in the
same store at Makawao. Kong being
the boss and the head of the firm of
Tam Yau Company. Chong told this,
having been called by the plaintiff;
also testified that he was sued by Paia
store, Haleakala Ranch Company and
Others and sold the land to pay their
claims and divided the money between ,
them. He and Tam Yau We're part ,
ners in the company. The defendants
offered no evidence.
Judge Kepoikai made certain find .
ings on which he based a decree that
the conveyance was null and void. De- ,,
PENDANTS brought writ of error to set
aside the decree for errors assigned,
the substance of which was that the '
judges findings were not borne out or
justified by the evidence. The Supreme 1
Court sets the decree aside and re- t
mands the cause to the circuit judge !
with leave, on application by the
plaintiff, to reopen the case and receive I
further evidence. Its grounds of de- 5
cision are that, although the decree to q
set aside the conveyance could be $
based on certain findings, standing by S
themselves, it cannot stand on the find c
ings made that the conveyance was for
the purpose of satisfying claims other Il
than the judgment at law in favor of I
the plaintiff; and that the decree also +
provided for the issue of an g
execution as in an action at law. a
In the same controversy the plaintiff
from a denial by the trial -
judge of his motion to amend the .
transcript of evidence, when the case !.
had been taken to the Supreme Court :.
on writ of error, the amendment to
have been in accordance with an affi-
davit of j. NJ. Vivas. one of the attor-
neys for the plaintiff. This affidavit
was to show. that evidence had been
given which did not appear on the 7,
record. The judge denied the motion,
saying that no good reason was shown D
why 1t should be granted and that his e
practice. i'm the absence of an official
was to rely upon the evil b
ience as taken down by the clerk, and a
he was of the opinion that It would be a
a dangerous and bad precedent to Ii
amend the transcript unless 1t should
be clearly shown that such change al 8
leration or amendment should be
made" 7
Upon the showing made. the Supreme I'd
Court decides, the appeal must be dis a