Lord v. Lord

• Decision Date: 26 March 1941
• Docket Number: No. 2467.,2467.
• Citation: 35 Haw. 843
• Parties: ELVIRA MAY MCNALLY LORD AND MARY VIRGINIA LORD v. EDMUND JOSEPH LORD, ET AL.
• Court: Hawaii Supreme Court

35 Haw. 843

ELVIRA MAY MCNALLY LORD AND MARY VIRGINIA LORD

v.EDMUND JOSEPH LORD, ET AL.

No. 2467.

Supreme Court of the Territory of Hawai‘i.

Argued March 17, 1941.

Decided March 26, 1941.

MOTION TO DISMISS.

Syllabus by the Court

Section 3504, R. L. H. 1935, which exempts executors and administrators from filing bond to stay execution pending appeal, does not exempt them from the requirement of section 3556, to the effect that no writ of error shall issue (except in cases therein named) until a bond in favor of the prevailing party conditioned as required by said statute is filed with the clerk.

Sections 3552 and 3556, R. L. H. 1935, are in pari materia and must be considered together to determine the legislative intent in requiring a bond conditioned for the payment of the money judgment in the original cause in case of failure to sustain the writ of error when, as in this cause, the judgment is against parties other than the party applying for the writ.

G. M. Nowell (also on the briefs) for the motion.

W. R. Ouderkirk filed a joinder for certain respondents but did not argue.

P. Cass ( Cass & Silver on the brief) contra.

COKE, C. J. AND KEMP, J.

OPINION OF THE COURT BY KEMP, J.

This is a motion to quash and dismiss a writ of error. The principal ground of the motion is the failure of the plaintiff in error to give bond as required by section 3556, R. L. H. 1935, which 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.”

By stipulation of counsel the motion was heard by the chief justice and one of the associate justices, the stipulation being executed in behalf of the plaintiff in error by counsel who entered their appearance after the motion to dismiss was filed.

The writ of error sought to be quashed and dismissed issued to review a decree in equity establishing a trust against numerous respondents, including the plaintiff in error. For details of the issues see opinion on demurrer, ante, p. 26 et seq.

The decree not only established the trust but appointed a trustee and ordered, adjudged and decreed that said trustee “have and recover from Thomas Desmond Collins and Patricia Therese Ryan Lord, as Executrix under the will, and Henry W. Helbush, as Administrator with the will annexed, of the estate of Edmund Joseph Lord, deceased, the market value of 290 shares of the capital stock of Pioneer Mill Company, Limited on June 24, 1932, plus all dividends thereon since that date, or the sum of SIX THOUSAND FORTY–SIX AND 50/100 DOLLARS ($6,046.50).” It was also ordered that New York Life Insurance Company pay over to the trustee the sum of $14,000.

Patricia Lord was sued, both as executrix and individually, and in her individual capacity alone applied for and procured the issuance of the writ of error. In compliance with section 3552, R. L. H. 1935, as amended by Act 127, Haw. Laws 1935, she caused the assignments of error and notice that a writ of error had issued to be served on all of the parties to said proceeding who did not join in the application for the writ, including herself as executrix and Henry W. Helbush as administrator. Said section as amended provides:

“In case the judgment, order or decree sought to be reviewed was rendered against two or more persons, either or any of such persons may apply for a writ of error and for that purpose shall be permitted to use the names of all such persons. The applicant shall serve those of such persons who have not joined in the application and who can be found within the territory with a copy of the assignment of errors and notice that a writ of error has issued. Such persons shall be entitled to be heard in the supreme court; and any of them may at any time before the case is heard and within thirty days from the date of service on them of a copy of the assignment of errors and notice that a writ has issued, file in the supreme court an additional assignment of errors, a copy of which shall be served upon each of the other parties to the proceeding. All such cases shall be determined in the same manner as if all such persons had joined in the application for the writ, but no costs shall be taxed against any such person who did not join in the application nor ask to be heard in the supreme court.”

Sections 3552 and 3556 are in pari materia and must be considered with reference to each other.

It is clear, and admitted by counsel for the plaintiff in error, that if there was a money judgment against the plaintiff in error the writ would have to be dismissed, it being admitted that the bond required by the statute was not filed. It is argued, however, first, that the decree contains no money judgment within the meaning of the statute, and second, if it does contain such a judgment, the statute does not require her to file a bond because the judgment does not run against her individually, the capacity in which she acted in applying for the writ. It is further argued that the provisions of section 3504, R. L. H. 1935, exempt executors and administrators from the provision of section 3556 requiring a bond of the plaintiff in error as a prerequisite to the issuance of the writ. Based on the foregoing, we are asked to hold that even had the executrix...