CHAPTER 93.

WRIT OF ERROR.

§ 1443. A writ of error may be had by any party deeming himself aggrieved by the decision of any justice, judge, or magistrate, or by the decision of any court except the supreme court, or by the verdict of a jury, at any time before execution thereon is fully satisfied, within six months from the rendition of judgment.

§ 1444. Writs of error shall lie to any decision or ruling by a justice or judge in any case in which jury has been waived.

§ 1445. A writ of error may be had to correct any error appearing on the record, either of law or fact, or for any cause which might be assigned as error at common law: Provided, however, That no writ of error shall issue for any defect of form merely in any declaration, nor for any matter held for the benefit of the plaintiff in error.

§ 1446. For all purposes of this chapter the record shall be deemed to include all pleadings, motions, notes, or bills of exception, exhibits, clerk's or magistrate's notes of proceedings, and, if so desired by the plaintiff in error, a transcript of the evidence in the case.

§ 1447. There shall be no reversal on error of any finding depending on the credibility of witnesses or the weight of evidence.

§ 1448. Writs of error in civil cases may be issued by the clerk of the judiciary department or his deputies, as of right in term time or vacation, upon the application of any party to the original cause or of any personal representative of a deceased party.

§1449. No writ of error shall issue in a criminal case unless allowed by a justice of the supreme court. The allowance of the writ shall operate as a stay of execution in capital cases but shall not suspend sentence in cases not capital.

§ 1450. No writ of error shall issue until the sum of twenty-five dollars has been deposited to cover costs, and a bond has been filed with the clerk, in favor of the prevailing party in the proceeding in which the error is alleged to have occurred, or to his personal representatives, conditioned for the payment of the judgment in said original cause in case of failure to sustain the writ of error. An assignment

of errors shall be filed at the time of procuring the writ.

§ 1451. Every writ of error shall be addressed to the clerk of the court, if any, in which the error is alleged to have occurred, or to the judge or magistrate making the ruling, and may be served upon such clerk or judge by mail.

§ 1452. Writs of error shall be substantially of the following form:

Το

the

Whereas in an action lately pending before the

judicial circuit, in which

-court for was plaintiff and defendant, error is alleged to have occurred, as appears by the assignment of errors on file in this court, you are commanded forthwith to

send up to this court the record and all exhibits filed in said proceedings.

Witness, the honorable

court.

chief justice of the supreme

No writ of error shall be quashed for defect of form.

§ 1453. Service of a copy of the assignment of errors shall be made by the chief sheriff or his deputies upon the defendant in error or upon the personal representative of a deceased party. Such copy shall bear a notice from counsel that a writ of error has issued. No hearing shall be had on a writ of error until twenty days after service. § 1454. No joinder in error shall be necessary. After due service the court may proceed ex parte if no appearance is made by the defendant in error.

§ 1455. No reversal on error shall affect the validity of any sale of personal or real property made on execution prior to the service of the copy of the assignment of errors. The issue of a writ of error and the filing a bond as above provided shall stay execution from and after notice of the same could have reached the officer making the levy of the same. It shall be the duty of the clerk or magistrate of the court to which the writ is addressed to notify such officer, and he shall be deemed to have received such notice by the first mail after the receipt of said writ, if making a levy in a place other than the residence of such clerk or magistrate, otherwise on the same day.

§ 1456. The supreme court shall have power to enter such judgment in the case as in their opinion the facts and law warrant.

§ 1457. The supreme court shall have power to order additional bond upon motion, and to determine the amount of penalty thereof and the sufficiency of the sureties to the same, or to the bond given, before proceeding to a hearing on the writ.

NOTE TO CHAPTER 93.

SS 1443-1457 are S. L. 1892, ch. 95, superseding C. L., §§ 1157-1160.

Cases in Hawaiian Reports: Peacock v. Lovejoy, 5 Haw., 231; Ahiu v. Wideman, 7 Haw., 333; Ami v. Parke, 7 Haw., 214; Phelps v. Carter, 9 Haw., 640; Cummings v. Iaukea, 10 Haw., 1; Woodward v. Republic, 10 Haw., 416; Goo Kim v. Holt, 10 Haw., 653.

CHAPTER 94.

APPEAL BONDS.

§ 1458. Whenever, in a proceeding before any court, on a motion for a new trial, or on an appeal, or upon an application for a writ of error, or upon exceptions, a bond shall be required for costs, or against the removal or disposal of property liable to execution, it shall be sufficient to give one bond, in an amount to be fixed by the presiding judge, which may include both security against costs and against the removal or disposal of property, and no other or further bond shall be required, and such bond shall remain in full force and effect until the final termination of the whole proceedings so pending in such court, or until the final determination before the court to which such motion for new trial, petition for writ of error, appeal, or exceptions, shall or may be taken.

§ 1459. No bill of exceptions or appeal shall be dismissed for any

informality or insufficiency of any bond unless upon neglect of the party filing such bond to comply with an order of a judge directing an amendment of such bond after a reasonable time of not less than 24 hours, which shall be given for such purpose.

§ 1460. The bond required in section 1458 shall in all cases run to the clerk of the judiciary department and to his successors in such office. It shall be conditioned for the payment of all costs to arise subsequent to its filing, and against the removal or disposal of property.

§1461. Whenever any person for whose benefit such bond has been filed shall be entitled to a recovery thereunder, an action may be brought in the appropriate court in the name of the clerk of the judiciary department for the use of such person, but on no account shall such clerk be liable for any of the costs, damages, or expenses of such suit, and any judgment recovered shall be payable to the person for whose use such suit was instituted and such person's receipt shall operate as a complete satisfaction of judgment.

JUDGMENT, EXECUTION, AND NEW TRIAL.

§ 1462. Judgment shall be entered by the clerk, without motion, immediately upon the rendition of a verdict, or of a judgment of the court in banco, or of a judge at chambers, and execution may issue thereon at any time thereafter, when called for, unless notice is given at the time of rendering the verdict or judgment, of a motion for a new trial and the filing of a bill of exceptions and bond, as provided by statute, within ten days after the rendition of such verdict or judg. ment: Provided, That execution may issue within ten days, even though such notice be given, when good and sufficient cause can be shown therefor. The provisions of this section shall not affect the right of appeal.

§ 1463. Any party against whom a verdict or judgment is rendered, as set forth in the last preceding section, may, upon filing a sufficient bond of security, conditioned for the payment of all costs of motion in case he fail to sustain the same, and that he will not, to the detriment of the plaintiff in the action, remove or otherwise dispose of any property he may have liable to execution on such judgment, and upon giving notice of said motion and the grounds thereof to the opposite party, move the court at any time within ten days after rendition of verdict or judgment, for a new trial, for any cause for which by law a new trial may and ought to be granted. The filing of the bill of exceptions and bond shall operate as a stay of execution until the motion is determined.

§ 1464. Every circuit judge at chambers, and district magistrate, shall, at the request of the party recovering any civil judgment in his court, unless such judgment be duly appealed from, issue his execution against the property of the party recovered against, which execution may be in the following form:

To any constable of the district of ——, Island of

H. I.:

You are commanded to levy upon the personal property of

if any within

your district, and if sufficient can not be found, then upon his real property within

said district, and, giving thirty days previous notice as required by law, to sell the same, or so much thereof as may be found necessary, at public sale to the highest bidder, in order to satisfy a judgment rendered by me against him in favor of on the day of 18-, for dollars, the costs of court inclusive. collecting also the legal interest thereon, from the date thereof, and your costs and the expenses of levy, advertisement, and sale. Make due return to me of this writ, with your proceedings thereon, and the money by you so collected, on or before the expiration of days; and hereof fail not at your peril.

Given under my hand this day of

18-.

District magistrate (or as the case may be).

§ 1465. The provisions of the last preceding section shall not apply to the issuing of execution upon a judgment entered up by the order of a circuit judge, in any cause or proceeding in the circuit court, but in such case the execution shall be issued in the manner and form prescribed for courts of record.

§1466. All executions issued by a circuit judge at chambers, or district magistrate, shall be made returnable within sixty days from the date thereof.

§ 1467. The forms of executions to be issued from courts of record shall be the same as have been heretofore established by the usage and practice of such courts; but alterations therein may, from time to time, be made, or allowed by the supreme court, when necessary to adapt them to changes in the law, or for other sufficient reasons.

§ 1468. All writs of execution, whether civil or criminal, issuing from any court of record, shall be addressed to the chief sheriff, or his deputy, and shall be signed by the clerk of such court, and impressed with the seal thereof.

§ 1469. Every officer receiving a writ of execution issued in due form by any court or justice shall note thereon the day and hour of its receipt, and he shall give priority in levying upon property of the defendant in execution to the writs received by him according to the order of time in which they are received.

§ 1470. Every levy by an officer, in pursuance of a writ of execution issued by any court or justice, shall be made by taking the property levied upon into his possession, care, and guardianship, and, in his option, by removal of the same to some place of security. The officer shall make an inventory of the property levied upon.

1471. The officer shall, after levy, advertise for sale the property levied upon, whether real or personal, for thirty days, or for such times as the court shall order, by posting a written or printed notice in three conspicuous places within the district where such property is situated, and if on the island of Oahu, by advertisement thereof at least three times in one or more newspaper or newspapers published at Honolulu, island of Oahu, Hawaiian Islands.

§ 1472. The officer shall, on the day and at the place set for such public sale, unless paid the amount of the judgment, interest, and costs, and his fees and disbursements accrued upon the writ, sell the property advertised to the highest bidder. He shall deduct from the proceeds of the sale sufficient for the full satisfaction, if possible, of the execution and his costs, expenses and commissions, and return the said writ, satisfied wholly or in part, paying the amount collected thereon to the plaintiff in execution or his attorney.

§ 1473. If at the time appointed for the sale the officer shall deem it expedient, and for the interest of all persons concerned therein, to postpone the sale, for want of purchasers or for other sufficient cause, he may postpone it for any time not exceeding seven days, and so

from time to time, for like good cause, until the sale shall be completed, giving notice of every such adjournment, by a public declaration thereof, at the time and place previously appointed for the sale. § 1474. The officer shall execute and deliver, to any purchaser at any such sale, such certificate of purchase, or conveyance, as may be necessary.

§ 1475. No sale by execution shall operate to convey a greater estate or interest in the property sold than the defendant in execution had at the time of such sale, and all such sales of property not belonging to the defendant shall subject the officer to the private action of the purchaser, being afterwards deprived thereof by the real owner.

§ 1476. The officer serving any execution shall act upon his own private accountability, for all excesses of his official powers, and for any departure from the legal import of the writ or mandate in his hands.

§ 1477. If upon an execution being issued by a circuit judge at chambers, or by a district magistrate, no property, or not a sufficient amount of property, belonging to the defendant in execution, can be found within the jurisdiction of the judge or magistrate issuing the execution, and the same is returned unsatisfied, either wholly or in part, the plaintiff in execution may, upon procuring a certified copy of the judgment and execution in the court below, to be docketed in the office of the clerk of the supreme court, sue out a writ of execution from said supreme court, which shall be available against the property of the defendant, whorever situated within the Territory.

§ 1478. Any circuit court out of which an execution has been issued, if such execution has been returned unsatisfied wholly or in part, may issue an alias execution to the same circuit, or an execution leviable in some other circuit, for the satisfaction of the unpaid remainder of the judgment and additional costs, expenses, and commissions, which alias or testatum writ of execution shall be served by the chief sheriff or his deputy, in like manner as the original.

§ 1479. No original execution shall be issued, unless within one year after the party shall be entitled to sue out the same, and no alias, or other successive execution, shall be issued afterwards, unless each one be sued out within one year after the return day of that which preceded it.

§ 1480. If a judgment remains unsatisfied, after the expiration of the time for taking out execution thereon, the plaintiff may have scire facias to obtain a new execution, or he may, at any time after the judgment, have an action of debt thereon.

§ 1481. Any judge of a court of record may, by order at chambers, in any cause in which an execution shall have been issued, grant a stay thereof in the officer's hands, for equitable reasons, when no appeal or writ of error is granted, upon the defendant giving bond and security for its payment, with costs up to the said stay. The property levied upon shall not be released from the levy by the stay of execution, and in case at the end of the time accorded the condition of such bond be not complied with, the plaintiff in execution may elect whether to proceed to the sale of the levied property or to enforce the bond; provided, that if the levied property be not sufficient to pay the judgment, with all costs, expenses, and commissions, the stay inclusive, the sureties in the bond shall be answerable for the deficiency. And when justice may require the renewal of any execution, or an extension of the time for making return to any execution, any judge of a court of record shall have power so to order.