22 Haw. 708 | Haw. | 1915
OPINION OP THE COURT BY
The plaintiff in error (defendant in an action for summary possession in the district court of Makawao) has sued out a writ of error from this court. The judgment below was in favor of the plaintiff. The docket of the district magistrate shows that the judgment was rendered on the 26th of February, 1915 ; that a certificate of appeal from said judgment to the circuit court was filed on the same date; that on March 5, 1915, the defendant (plaintiff in error here) perfected his appeal by filing a
We will first dispose of the motions to strike. The motion to strike the affidavit of David Morton, deputy sheriff, explanatory ,of his return, is sustained. The return of the officer should show the manner, time, place and circumstances under which the writ was executed by him. If any error is made in the return by way of omission or otherwise, such error should be corrected by amendment in the district court.
The motion to strike the affidavit of Edmund H. Hart, clerk of the circuit court of the second circuit, showing payment of costs and discontinuance of the appeal, is overruled. For the purpose of the motion to dismiss the writ of error, the payment of costs by the defendant in the judgment and writ of possession is material, and where that fact .has not been shown in the record it is proper for the defendant in error, in support of his motion, to show it by affidavit.
The motion to strike from the record the writ of possession, and the return of the officer thereon, is denied. Whether the said writ of possession and return thereon is properly a part of the record of the district court in this action is not material. The said writ of possession and return thereon is proper evidence in support of the motion of defendant in error to dismiss the writ of error, and it is immaterial as to how the writ of possession and return thereon comes into this court; whether it is filed by the district magistrate as a part of his record in the case, or is filed by the defendant in error in support of his motion.
The defendant in error, in support of his motion to dismiss the writ of error, relies upon the fact that the judgment has been fully satisfied. The transcript of the district magistrate
The motion to dismiss the writ of error is denied.