Year: 1873

Writ Of Mandamus.
/ Before ALLEN, C. J., and HARTwELL and WIDE
/ MANN, J. J.-In Banco, heard by agreement il


vacation, after January Term, 1873. ALLEN, c
! J., delivered the opinion Of the Court.


This is a petition for Writ of Mandarin
against John Montgomery, Police Magistrate o
I Honolulu, praying that he may be directed t
grant certificate of appeal as claimed by tb'
defendant in the suit of John Meek vs. 0opa.
This application was heard before Mr.. Justice
Widemann, and the writ awarded by him, from
which an appeal was taken. 1t appears that {
writ was issued by the said Police Justice, by
which the defendant was summoned to answer
the complaint of the plaintiff, in which it wa;
alleged that the defendant is in possession o.
certain premises, which be holds unawfully and
against the right Of the plaintiff.


1t was process of summary proceeding under
the statute, 10 which judgment was rendered by
the Police Justice in favor Of the plaintiff, and
notice of an appeal was given by the defendant
TO the Justice within tweuty-fOur hours, and q
bond rendered in six days thereafter. The-Justice
declined to grant certificate of appeal, on the
ground that a bond had not been filed within the
time prescribed by statute.


1t is purely question of construction of the
statute by virtue of which the process was issued
Either party may appeal at any time within
twenty-four hours after entry of :he judgment to
any Circuit Judge, or to the Supreme Court, but
before an allowance for On appeal bond for
costs shall be fled.


There is material distinction between an ap-
peal and notice of an appeal. The one refers to
an appeal complete in itself; the other, to an
appeal 10 be perfected at some future time.


This language was used for the purpose of
carrying out the intention of the statute. 1t is
a summary process to recover possession of land
held unlawfully and against the right Of the
plaintiff 1t is unlike the ordinary process Of
eiectmeut where doubtful title is involved, but
in this case the defendant holds under the
plaintiff, and ought to deliver up the possession
at the expiration of the term, and the statute is
enacted for the express purpose of defeating
delays and it would not be in conformity to its
spirit to grant any delays not specially given.


The statutes are consistent on the subject Of
appeals. By Sec. 245, in case of trespass Of
animals on land, the language is, an appeal shall
not be allowed unless taken within five days and
a bond given for payment of costs Here five
days are given. In this case, twenty-four hours
are given for perfecting the appeal.


The intent ard spirit of this statute is further
illustrated by reference to Section 949 in which
it is declared that when defendant is proceeded
against for the non-payment of rent, be shall not
be allowed to keep possession and take his appeal
unless he first gives bond to the plaintiff, with
sureties TO pay the rent which may accrue after
the appeal. The construction as claimed by the
petitioner would defeat the security for rent for
at least ten days, which would be expressly con-
trary to its provisions.


In Section lOO6, party may appeal by giving
notice of his appeal within FIVE days after judg-
ment, and within ten days, paying costs and
deposlting bond for costs that may accrue there
after A party has not appealed until he has
done what the statute fully requires Of him. In
this case, either party may appeal within twenty
four hours, and if any requirement of the law is
omitted it is not an appeal which the Court can
recognize.


HARTwEIL, J.


/ concur with the view of the Chief Justice.
In the King vs. Cullen, July Term, 1869, the
defendant was not allowed to bring bis appeal to
this Court by reason Of failure to pay costs
within the statutory time. In the Estate of Ke-
liiabonu, January Term, 1866 an appeal was
taken within the time required by the Rules,
there being no statute affecting that case, but the
appeal was held to be Intellectual for not filing a
bond for costs. This was by analogy with the
statutes of appeal in other cases, for the Rules
required no bond. These decisions by the full
Court rest on reasoning which 1 suppose con-
cludes the present case, making the appeal in
efTectual unless perfected by the bond.


If the Legislature had intended to allow ten.
days for filing bond to perfect the appeal in these
cases think they would have said so, and that
the words "either party may appeal" used in
this statute, are not Synonymous with the words
give notice of appeal" used in the general
statute. III the requirement. Oe elIlCt, IL 10 lOI
the Legislature only to tighten it.


WIDENAYY, j.:


With due Difference to the views above ex-
pressed by the Chief Justice and First Associate
Justice, and besides fully concurring in the gen.
eral principle that laws should be strictly con-
strued, | can still not concur in tie above
opinion. Under. the construction of the law as
above given, it may become practical impossi-
bity in some cases 10 fulfill the conditions of the
statute. This would amount TO denial of Justice,
and as can not bring myself to believe that the
Legislature intended to make such law, and as
there seems to me to be possibility of differ
ent construction, feel it my duty to record a
dissent.


Supreme COurt--In IsancO.


JANUARY TERN, 1873.
BEFORE ALLEN c. J.. HARTwELL AND wIDEMANN, J. J. |