Harh Hak Sae v. Lindsay

OPINION. Tbe plaintiff, having obtained a judgment in an action on a promissory note written in Korean characters, took out execution which was levied by the officer, when the defendant within ten days after entry of the judgment filed a motion to vacate the judgment and for a new trial on the ground, as shown by an affidavit, that the note, when correctly translated, showed that he was not its maker but a witness to the signature of the maker. A new trial was ordered but the judgment has not been vacated and no bond has been filed by the defendant “conditioned for the payment of the full amount for which such execution was issued in case the judgment should not be reversed or set aside on any appeal.” Act 83 S. L. 1901. Thereupon the plaintiff brought a petition for a writ of prohibition to prohibit the new trial, upon the filing of which petition an order to show cause was made. The cause shown is that the motion was filed within the time provided by law, that a bond was given ás required by law 'and that the judge had jurisdiction to hear and determine the motion and to order a new trial. The bond filed with the motion was conditioned for payment by the defendant of costs further to accrue in case he should be defeated and that he would not to the detriment of the plaintiff remove or otherwise dispose 'of any property he might have liable to execution, and would have operated as a stay of execution were it not for the proviso in the statute requiring that when execution shall have issued the bond be conditioned for payment of the amount for which it was issued in case the judgment should not be reversed. The effect of the failure to file [668] tlie required bond would be that the officer would go on and sell under the execution upon receiving a bond of indemnity, if hu should demand it. Prior to the amendment of Secs. 1804 and 1805 R. L. by Act 36 S. L. 1905, and Act 83 S. L. 1907, a bond was required to be filed with a motion for a new trial, or “the motion should not have been entertained by the court.” Joliva v. Kaulukou, 7 Haw. 732. The denial of the motion, when not accompanied by the requisite bond, was ground for dismissing a bill of exceptions to the denial. Gonsalves v. Brito, 8 Ib. 255. “A sufficient bond not having been filed, the court below had no jurisdiction to entertain the motion for a new trial.” Ferreira v. H. R. T. & L. Co., 16 Ib. 797. “The defendants’ failure to file the required bond within the ten days prescribed by the statute was fatal unless it was waived by the plaintiff.” Territory v. Cotton Bros., 17 Ib. 380. Before the statute was amended the statutory power of the trial court to grant a new trial “for any causo for which by law a new trial may and ought to -be granted”' was limited to cases in which the party against whom the judgment was rendered files a sufficient bond conditioned for payment of costs of the motion, if he fails to sustain it, and that he would not to the plaintiff’s detriment dispose of any property liable to execution, and in which he had given the opposite party notice of the motion and the grounds thereof. The statute, as 'amended, does not appear to limit the power of the court to order a new trial. It is silent upon the subject merely referring to the effect of a bond to pay the judgment in staying an execution which has been issued. I am inclined to think that a bond to satisfy the judgment is not essential to the exercise by the court of its jurisdiction to entertain a motion for a new trial, although upon proper application by the plaintiff the bond might perhaps be required. But there are other grounds for denying the writ, which our statute defines as a mandate “directed to the judge and the party suing in any inferior court, forbidding them to proceed [669] any further in the cause, on the ground that the cognizance of the said cause does not belong to such court, or that the cause or some collateral matter arising therein is beyond its jurisdiction, or that it is not competent to decide it.” Sec. 3023 E. L. California decisions, which allow the writ if “the adequacy of the remedy by appeal in any case is an open question,” are under a code provision that the writ lies where there have been proceedings “without or in excess” of jurisdiction and there “is not a plain, speedy and adequate remedy in the ordinary course of the law.” 2 Spelling’s Extraordinary Eelief, Sec. 1130. If the statxites under which similar decisions have been made in other states are like the statute of California they 'are not applicable to cases arising under our statute. Gould v. Capper, 5 East 345, appears to- extend the writ to cases in which there is a remedy by appeal or error in order to prevent “the mischief of misconstruction,” but this is not the doctrine of the United States Supreme Court. “Although a writ of prohibition will lie to an inferior court, Avhen it is acting manifestly beyond its jurisdiction, such writ will issue only where there is no other remedy. Smith v. Whitney, 116 U. S. 167; In re Cooper, 143 U. S. 472, 495; In re Rice, 155 U. S. 396, 403; In re New York, &c. Steamship Company, 155 U. S. 523, 531.” Eclipse Bicycle Company v. Farrow, 199 U. S. 580. See also State v. Price, 8 N. J. L. 358. G. A. Davis for petitioner. Magoon S Lighifool for defendant. The plaintiff, if wronged, has his remedy by exception or error, which is exclusive in this case, the granting of the motion not being beyond the jurisdiction of the circuit court. Writ denied.