Marks v. Waiahole Water Co. , 1942 Haw. LEXIS 8 ( 1942 )

This is a motion by the defendant, appearing specially, to dismiss the writ of error herein upon the ground that the plaintiffs have failed to comply with that portion of section 3556, R.L.H. 1935, requiring a bond, conditioned for the payment of the judgment in the original cause in case of failure to sustain the writ. The defendant prevailed in the court below and obtained a judgment in the sum of $276.65.

It appears that the plaintiffs in applying for a writ of error deposited $50 with the clerk of this court and received two receipts of $25 each. The first receipt reflected a compliance with the first requirement of the section to cover costs. The second receipt for the other part of the deposit was designated, at the request of the attorney for the plaintiffs, as a "Cash Cost Bond." Thereupon the writ purportedly issued. A day subsequent thereto, the attorney secured ex parte from a justice of this court an order fixing the amount of bond on appeal at the sum of $25 and approving the deposit of a cash bond in that amount.

The record presents one question, i.e., Does a deposit in lieu of a bond satisfy the statutory requirement of section 3556,supra, that "No writ of error shall issue until * * * 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"?

Plaintiffs urge that a deposit of cash in lieu of the bond, required by section 3556, constitutes a mere "informality or insufficiency" within the meaning of that term as employed in section 3506, R.L.H. 1935, by the provisions of which "no * * * writ of error shall be dismissed for any informality or insufficiency of any bond * * *." Section 3506 assumes the posting of a bond in which the informality or insufficiency occurs. In the absence of a bond the provisions of the statute do not apply. (Kuapuhi v. Pa, 31 Haw. 623.)

A bond has certain essential characteristics without which it cannot exist. It is a written instrument in form (Pierson v.Townsend, 2 Hill [N.Y.] 550, 551), and in substance it is an obligation, contractual in nature, upon the obligor to perform its purposes, conditioned by its terms. (City of Tyler v. St. L.S.W. Ry. Co., 99 Tex. 491;Laverty v. Cochran, 132 Neb. 118.) The plaintiffs in applying for a writ filed nothing containing these characteristics although they are expressly indicated in the language of the statute requiring a bond to be filed.

The right to appeal is purely statutory. The provisions of section 3556 are clearly mandatory and are free of any ambiguity. That section explicitly requires as a prerequisite to the issuance of a writ of error the filing with the clerk of a bond upon specific terms and conditions. Cash in lieu thereof will not suffice. No right or option in the alternative is extended by statute to an applicant for a writ of error to deposit cash in lieu of the required bond. In the absence of a statutory provision to that effect the deposit by the plaintiffs of cash was unavailing and they stand legally in the same position as though they had done nothing. They failed to grasp the statutory opportunity extended to them to effectuate their appeal and also failed to afford the defendant the protection which the legislature intended for him to have. (Hilo Finance v. DeCosta, 34 Haw. 47; Bishop v. City and County, 32 Haw. 111;Lord v. Lord, 35 Haw. 843; W. Au Hoy v. Ching Mun Shee,33 Haw. 239; St. L.K. S.W. Rly. Co. v. Morse, 50 Kan. 99, 105, 31 P. 676, 678; In re Witt's Estate, 100 Kan. 171, 172, 163 P. 797, 798.)

At this point it should be noted that although statutes providing for appeals are to be liberally construed in furtherance of the right to appeal, that right is wholly within legislative control and the court cannot go beyond the clear import of the statute to give the language a meaning not intended by the legislature, nor may it in effect legislate that which the legislature in its exclusive power did not see fit to do. (W. AuHoy v. Ching Mun Shee, supra; In re Witt's Estate, supra.)

The complete answer to the question here raised is found in Ringgold v. Graham, 13 S.W.2d [Tex.] 355, 356, in the following language: "The right to accept a deposit of cash in lieu of a bond is derived from the law, and not from the court; and where the statute requires a bond, and does not authorize a deposit in lieu thereof, the court is without authority to accept such deposit.

"* * * The appeal could only be allowed by the justice upon the filing of such a bond as the statute required, and an approval of any other would be unauthorized and of no effect. State v. White,41 N.H. 194; Minton v. Ozias, 115 Iowa 148, 88 N.W. 336."

In that there was a failure to file the required bond, the writ did not validly issue and neither the court, nor any justice, has the power or authority to ratify its improper issuance or to waive the express requirements of the statute in respect to filing a bond.

The motion to dismiss is granted.