23 Haw. 173 | Haw. | 1916
OPINION OF THE COURT BY
The plaintiff commenced this action of assumpsit in the district court of Wailuku against the defendant and obtained judgment for a small amount, from which judgment the defendant has appealed to this court on points of law. In the notice of appeal it is recited that the appeal is upon points of law, to wit: “The court erred in overruling defendant’s motion for a nonsuit, said motion for nonsuit being on the following grounds” (naming four grounds for the motion) “and 2, that the court erred in taxing costs against the defendant herein.” In the district magistrate’s certificate of appeal, it is recited that the appeal is “on points of law,” but no point of law is stated. Should the appeal be dismissed for the reason that the district magistrate’s certificate does not state the points o'f law upon which the appeal is taken as required by Rule 14 of this court?
The statute authorizing the appeal (R. L. 2507) provides, inter alia, that “any appeal solely upon points of law from a decision of a district magistrate shall be so stated in the notice of appeal.” Rule 14, supra, supple
In Afong v. Kale, supra, the certificate of appeal did state the points of law upon which the appeal was taken, but the certificate was not filed in this court until two months after the appeal had been perfected and the record sent up. The court there made some suggestions to the effect that if the points of law appeared on the minutes of the district magistrate it was not necessary to state them in the certificate of appeal, but this was obiter dicta as in that case the points of law appeared in the certificate of the district magistrate, and the motion to dismiss the appeal was made upon the ground that the points of law upon which the appeal was taken were not stated in the district magistrate’s certificate within ten days after judgment.
Under the liberal construction and application of the rule in question made in former decisions of this court it is hard to conceive of any valid excuse for not complying with it.
Under the decisions cited, and for the reasons herein stated, the appeal is dismissed with costs to the plaintiff appellee.