The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-12-10
A NICE POINT
IN SCIRE FACIAS
Can Execution Issue Against
Judgment Debtors
Executor?

JuuSS LIE DOlt yesterday lieu d VIII
ten opinion on rather interesting
question of law. 1t was in the case
of Oriental Life Insurance Company
against C. Winam and others. In the
opinion Judge De Bolt says:
Plaintiff, on November 4, 1904, oh
tanned judgment against C. Winam in
this court for the sum of $24S0.25. On
March 8, 1908, Winam died, and on
April IA, 1908, his widow. Chang Tam
Shee, was duly appointed executrix OF
his estate.
i Plaintiff, having failed to take out
execution on said judgment during the
! life time of Winam, on November Is,
| 1908, sued out a writ of scire facias
requiring the executrix to show cause
why execution upon said judgment
should not issue against any property
which belonged to Winam during his
| lifetime
The executrix demurred to the writ
on the grounds that the writ shows up
| on its face that the plaintiff is not en-
titled to the relief therein prayed for,
and that the property of the judgment
be reached by execution.
1t is urged on behalf of the execu-
trix that, inasmuch as judgments are
not liens upon either the real or per-
sonal property of the judgment debtor
in this Territory until levy of execu-
tion Hereunder, the plaintiff S claim
stands upon the same footing as any
other claim not reduced to judgment
and that plaintiff is not entitled to
execution as prayed for.
Plaintiff does not dispute the propo-
sition that judgments are not liens, but
contends that it is entitled to eXecu-
ton and to have the same levied upon
the property of the estate of the
deceased with the view of having the
Judgment satisfied.
The question thus presented is, not
whether judgments are liens, but wheth-
er a Judgment creditor having failed
to take out execution during the life
of the Judgment debtor is entitled to
execution against the property of the
deceased in the hands of his legal rep
resentative.'
1t will be observed that the record
does not disclose the fact as to whether
the estate is solvent or insolvent, nor
whether the estate consists of real or
personal property or both.
With regard to the right of the plain
tiff, if execution is allowed to issue,
or the extent of the power of the Of
feer Hereunder, the court at this time
is not called upon to determine.
The sole question involved in con-
sidering the demurrer is, whether the
plaintiff is entitled to execution, not
what property or pro rata thereof may
be subject thereto, or whether the heirs
should be made parties.
Mr.. Freeman, at page 321, So7, OF
his work on executions, says: Upon
the death of a defendant, leaving
Judgment which is not a lien on any
real estate. no one but his personal
representative need be a party to the
scire facias.
If the Judgment be for money, it is
primarily chargeable against the execu-
tor. and no revivor ought to be entered
against the heirs until after a return
of nihil as to the executors.
The demurrer is overruled.
Princess Elects to Take Dover.
The election of dover of the Prin
cess Kawananakoa was fled in the
Circuit Court yesterday. 1t is IN form
as follows:
"NOw comes Abigail W. Kawanana-
koa, widow of the above-named David
Kawananakoa, deceased, testate, and
hereby gives notice that she declines to
accept the provisions of the will OF
said David KawananakOa, deceased, as
the same are in said will contained, and
hereby elects to reserve and take her
dover in the estate of said David Ka-
wananakOa, deceased.
New Trial Denied.
Judge De Bolt has entered an order
denying a new trial in the case of B.
F. Dillingham; VS.. NJ f. Scott. The
motion for a new trial was made by NJ.
F. Scott.
Guardians Accounts.
Abraham Kaleikau yesterday filed his
final account as guardian of Joseph Mi
kaele and Wahinenani, minors. He
charges himself with $45423, and asks
to be allowed $120.50, leaving a bal
ance due the minors of $333.73.
Demurrer Filed.
The Lung Do Chung Sing Tong Be
nevolent Society, by its attorney, A. S.
Humphreys, has demurred to the petit
ton of Yong Kwong Tat for a writ of
mandamus.
Probate of an Old Will
Florina Jesus Comes has petitioned |
for the probate of the will of GuiIher- |
nina Jesus, who died July 20, 1905, |
leaving an estate value at $1,000.
Divorce Granted.
Judge De Bolt yesterday granted a
divorce to Isaac SimersOn from Mar |
garette SimersOn on the ground of |
adultery.