8 Haw. 229 | Haw. | 1891
Opinion of the Court, by
Having fully considered this case, we hereby affirm and adopt the reasoning of Mr. Justice McCully in his decision, rendered on the 10th of February last.
Decision op McCülly, J., Appealed From.
The plaintiff having recovered, according to his claim for land, but without award of damages, the defendant files his motion for a new trial on sundry statute grounds. The plaintiff’s counsel contends that the motion should not be entertained by the Court, as not having been perfected as the statute and rules concerning motions for new trials require.
It appears that the defendant has paid the Clerk of the Court all costs accrued, including attorney’s fees. He has also filed a bond to the plaintiff in the sum of two hundred dollars, conditioned to pay all costs further to accrue in case he shall be defeated in this proceeding, 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 the judgment.
In respect to the second of these conditions I have just ruled, in the case of Kaheana vs. Nalimu (Ante, page 227) which was argued together with this by the same counsel, that a bond not to remove property to the detriment of the plaintiff is not necessary in cases where the plaintiff has recovered the land merely, without damages, and in accordance with that holding it will not be necessary to consider any objections against the bond, treating it as something not required at all for this purpose.
In the case of Joliva vs. Kaulukou, 7 Hawn., 731, there was no bond filed with the motion for a new trial, and, it would appear, no deposit as allowed by Rule V. The Court further remarks that the bond on the bill of exceptions (which is not in our case), should have been made to the appellee and not to the Clerk. I am unable .to see anything in that case which will not permit the bond in this instance to fill the statute requirement, the language of which it follows.
I therefore overrule the motion to dismiss the motion for a new trial. The parties may be heard on this.