F. E. Davis & Co. v. Illinois-Pacific Glass Co.

• Decision Date: 14 November 1914
• Citation: 22 Haw. 303
• Parties: F. E. DAVIS & COMPANY, LIMITED, PLAINTIFF AND PLAINTIFF IN ERROR, v. ILLINOIS-PACIFIC GLASS COMPANY, A CORPORATION, DEFENDANT AND DEFENDANT IN ERROR, AND HONOLULU BREWING AND MALTING COMPANY, LIMITED, A CORPORATION, ET AL., GARNISHEES.
• Court: Hawaii Supreme Court

22 Haw. 303

F. E. DAVIS & COMPANY, LIMITED, PLAINTIFF AND PLAINTIFF IN ERROR,

v.ILLINOIS-PACIFIC GLASS COMPANY, A CORPORATION, DEFENDANT AND DEFENDANT IN ERROR, AND HONOLULU BREWING AND MALTING COMPANY, LIMITED, A CORPORATION, ET AL., GARNISHEES.

Supreme Court of the Territory of Hawai‘i.

Argued October 19, 1914.

Decided November 14, 1914.

OPINION TEXT STARTS HEREMOTION TO DISMISS.

Syllabus by the Court

A writ of error does not lie to an order of a circuit judge at chambers requiring security for costs in a term case then pending in the circuit court and staying proceedings in the principal action pending a compliance with such order.E. C. Peters for plaintiff in error.

A. L. Castle ( Castle & Withington on the brief) for defendant in error.

ROBERTSON, C.J., WATSON AND QUARLES, JJ.

OPINION OF THE COURT BY WATSON, J.

Assumpsit in the circuit court of the first circuit brought by the plaintiff in error against the defendant in error. Subsequently the defendant moved for and obtained from the circuit judge at chambers an order requiring the plaintiff to give security for costs of court to accrue in said cause to the final determination thereof, and that all further proceedings be stayed until said bond and security have been given. From that order this writ of error is prosecuted. The defendant moves to dismiss the writ of error for the reason, among others, that no final judgment has been entered in the above entitled cause and the order complained of is not such a final order as may be reviewed on writ of error. Authority to require security for costs is to be found in section 1648 of the Revised Laws, as follows: “Sec. 1648. Circuit judges at chambers. The judges of the several circuit courts shall have power at chambers within their respective jurisdictions, but subject to appeal to the circuit and supreme courts, according to law, as follows: * * * Tenth. To require either the plaintiff or defendant, upon the application of the opposite party, to give security for costs in any civil cause, upon such terms and conditions as the judge shall deem just.” There is no contention that the circuit judge at chambers was without jurisdiction to make the order, in which event, under the authority of Territory v. Cotton Bros., 17 Haw. 374, the order might be deemed a final one for the purpose of review by writ of error. Indeed, it is impliedly conceded that such jurisdiction existed, as counsel for plaintiff, in opposition to the motion to dismiss, argues that the order requiring plaintiff to give security for costs and staying proceedings pending the compliance with the order was an ancillary or interlocutory proceeding before the circuit judge at chambers and that such order is a final determination of such ancillary or collateral proceeding, to review which a writ of error will lie.

We agree with so much of plaintiff's contention as relates to the nature of the proceeding, that is, that it was ancillary or incidental to the principal action,-the term case then pending in the circuit court. Western Nat. Bank v. Peacock, 18 Haw. 161;Volcano Stables & Transportation Co. v. Ferry, ante p. 229. It is well settled in this jurisdiction that the term “writ of error,” as used in our statute authorizing the suing out of same (R. L. Sec. 1869), is to be taken in its common law acceptation and that final judgment must have been entered in the cause before the writ will lie. Territory v. Cotton Bros., supra; Kaehu v. Namealoha, 20 Haw. 516. Was the order of the circuit judge requiring plaintiff to furnish security for costs and staying proceedings in the cause pending a compliance with the order final? We think not. It was merely interlocutory. It did not determine the controversy between the parties. There remain questions of fact unsettled. Gear v. Henry, 21 Haw. 55. “No judgment is final which does not terminate the litigation between the parties to...