Cardozo v. Sociedade Portugueza De Santo Antonio Beneficente De Hawai`i

• Decision Date: 25 January 1909
• Parties: JOSEPHA A. F. CARDOZO v. SOCIEDADE PORTUGUEZA DE SANTO ANTONIO BENEFICENTE DE HAWAII, A CORPORATION.
• Court: Hawaii Supreme Court

19 Haw. 319

JOSEPHA A. F. CARDOZO

v.SOCIEDADE PORTUGUEZA DE SANTO ANTONIO BENEFICENTE DE HAWAII, A CORPORATION.

Supreme Court of the Territory of Hawai‘i.

Argued January 19, 1909.

Decided January 25, 1909.

RESERVED QUESTION FROM CIRCUIT JUDGE, FIRST CIRCUIT.

Syllabus by the Court

Courts have inherent power to make rules for the transaction of their business, and assuming that the rules of the circuit courts of the Republic of Hawaii are no longer in force, the circuit court of the first circuit, in the absence of rules for all the circuits made under R. L. 1659, has power to make its own rules.

Under R. L. 1911 and the circuit court rule as to the liability of attorneys for costs the court has power to tax the costs of a commission as costs of court and hold the attorney of the losing party liable therefor, although such costs were advanced by the opposite party pending the termination of the case.

W. W. Thayer for plaintiff.

A. Perry for defendant.

HARTWELL, C.J., WILDER AND BALLOU, JJ.

OPINION OF THE COURT BY BALLOU, J.

Plaintiff brought an action of assumpsit, during the course of which a commission issued at the instance of the defendant to take testimony in the Azores. Accompanying the return of the commission was the commissioner's bill for costs, made up of commissioner's fees, services of stenographer and typewriter and services of interpreter, amounting in all to $97.50. This amount the defendant paid to the clerk of court who remitted it to the commissioner. Defendant having prevailed in the action presented a bill for costs including this item, but before ruling thereon moved that an order be made by the court declaring the amount of the commissioner's fees, and afterwards by amendment that the whole of the commissioner's bill, to be costs of court and directing the clerk to repay to the defendant the amount advanced and to look to the plaintiff's attorney for payment. The trial judge thereupon reserved for the consideration of this court the following question: “Has this court the authority to tax this sum of $97.50 or any part thereof as costs of court and to order the clerk of this court to refund said sum to defendant and to collect the same from the plaintiff's attorney under Rule 29 of this court or any other rule, statute or power?”

The rule referred to under which it is sought to hold the plaintiff's attorney liable reads, “Attorneys shall be liable for costs of court incurred by their respective clients.” The same rule was in force in the circuit courts of the Republic of Hawaii. Rule 24 (c) 9 Haw. 723. It is argued on behalf of the plaintiff that the rules of the courts of the Republic were not after annexation the rules of the corresponding courts of the Territory, not being saved by any statutory enactment, that since annexation no circuit court rules have been established by a majority of the circuit judges as provided in R. L. Sec. 1659, and that the rule now in question...