W. Au Hoy v. Ching Mun Shee , 33 Haw. 239 ( 1934 )

Judgment having been rendered against her in the circuit court in the above proceeding the defendant, Ching Mun Shee, caused a writ of error to issue out of this court to review errors alleged to have been committed by the trial court. The plaintiff has interposed a motion to quash and dismiss the writ on the grounds,inter alia, "that plaintiff in error" (defendant) "has failed to comply with section 2529 of the Revised Laws of the Territory of Hawaii in that she failed to file the bond with this court before the issuance of the writ of error." The statute referred to provides: "No writ of error shall issue until the sum of twenty-five dollars has been deposited to cover costs, and, except in criminal cases and cases in which there is no money judgment, 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 his personal representatives, conditioned for the payment of the judgment in the original cause in case of failure to sustain the writ of error." The record before us shows that the writ of error herein was filed by the defendant with the clerk of this court and issued by the latter and that subsequently the bond required by statute was filed with the clerk. It is true the bond was filed forthwith after the issuance of the writ. We are of the opinion, however, that it is immaterial what particular length of time may have lapsed between the issuance of the one document and the filing of the other. It is solely a matter of priority which governs. The statute is mandatory in its terms and expressly prescribes that no writ of error in a case of this nature may be issued by the clerk until the bond required by the statute shall be first filed with him. It is argued that this court, under the guise of the rules of statutory construction, should rewrite section 2529 so that it will authorize the doing of a thing which the statute in its present form expressly prohibits and thus have this court invade what the law has set apart as an exclusive field of legislation. In construing a statute the object is always to ascertain and give effect to the intention of the legislature. Where a statute is dubious courts will resort to a consideration of the reason and spirit of it or the cause which induced its enactment. As this court clearly pointed out in its opinion in Honolulu R.T. Co. v. Wilder, 30 Haw. 685 at 690 (quoting from 36 Cyc. 1106): "This intention" (legislative purpose), "however, must be the intention as expressed in the statute, and where the meaning of the language used is plain, it must be given effect by the courts, or they would be assuming legislative authority." The above opinion was affirmed by the circuit court of appeals, ninth circuit. See 36 Fed. (2d) 159. Another eminent authority stating the same rule in different language says: "The statute itself furnishes the best means of its own exposition; and if the intent of the act can be clearly ascertained from a reading of its provisions, and all its parts may be brought into harmony therewith, that intent will prevail without resorting to other aids for construction." 2 Lewis' Sutherland, Stat. Const., 2d Ed., 665. See also Crooks v. Harrelson, 282 U.S. 55, andMonson v. Chester, 22 Pick. (Mass.) 385. Section 2529, R.L. 1925, is entirely free from any ambiguity whatsoever. Its terms are clear and unmistakable. It is susceptible of no judicial construction because there can be no doubt of its meaning. It contains no harsh, unjust or unusual provisions and the reasons which induced its enactment are obvious. It clearly was the intention of the legislature to prohibit the issuance of a writ of error by the clerk of this court until the plaintiff in error had deposited the sum of twenty-five dollars to cover costs which was to assure the payment of court costs and the filing of a bond with the clerk in favor of the prevailing party which of course was for the protection of the latter. There is nothing absurd, mischievous or unreasonable in these requirements and compliance therewith is a simple matter.

When the writ was presented to the clerk by the plaintiff in error and signed and filed by the former in his official capacity it was then in his hands for service upon the clerk of the court below (see § 2532, R.L. 1925) and the issuance of the writ was entirely completed. See Re Josephine Silva, 32 Haw. 855. It then became the duty of the clerk of this court to serve the writ upon the clerk of the lower court, the statute containing no fixed time within which such service should be made. The writ therefore was issued by the clerk before any bond was filed, a thing the statute in most direct and unequivocal language says shall not be done.

This court, in a recent illuminating opinion, says: "The filing of a bond is by section 2529 made a prerequisite to the issuance of a writ of error and is therefore indispensable to the jurisdiction of this court." Kuapuhi v. Pa, 31 Haw. 623, 624. See also Correa v. Felippe, 24 Haw. 672.

The identical question now under consideration was before the court in Hackfeld Co. v. Hilo Railroad Co., 14 Haw. 695. In that case the court granted the motion to quash the writ of error for the reason that the same was issued before the bond required by statute was filed and thus the court was without jurisdiction.

This is not a case where the documents were all transmitted to the clerk of this court by mail or handed to him simultaneously. Under those circumstances it would perhaps be the duty of the clerk to file and issue the documents in the order prescribed by statute.

Failure to comply with the statute in the present case is fatal to the validity of the writ and the motion to quash is therefore granted.