Marks v. Waiahole Water Co.
| Decision Date | 27 June 1942 |
| Docket Number | No. 2494.,2494. |
| Citation | 36 Haw. 188 |
| Parties | A. LESTER MARKS, EXECUTOR OF THE WILL AND OF THE ESTATE OF LINCOLN L. MCCANDLESS, DECEASED, ET AL. v. WAIAHOLE WATER COMPANY, LIMITED. |
| Court | Hawaii Supreme Court |
MOTION TO DISMISS WRIT OF ERROR.
Section 3556, R. L. H. 1935, is mandatory in requiring the filing of a bond as a prerequisite to the issuance of a writ of error and a deposit of cash in lieu of an appeal bond is insufficient compliance with the statute in absence of express statutory authority, or waiver or stipulation by the parties.
Section 3506, R. L. H. 1935, assumes the posting of a bond before the informality or insufficiency of a bond can be considered in a motion to dismiss a writ of error.
A. G. M. Robertson (Robertson, Castle & Anthony on the brief) for the motion.
W. C. Moore (also on the brief) contra.
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. De Costa, 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 Pac. 676, 678; In re Witt's Estate, 100 Kan. 171, 172, 163 Pac. 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. Au Hoy 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.
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.
This case affords an example of the importance which the legal profession is inclined to attach to the presence or absence of what Mr. Justice Cardozo termed “the precise word”. In 1917, speaking for the Court of Appeals of New York, he said, in the Lady Duff–Gordon case––remembered from their law school days by many lawyers: “The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal.” (Wood v. Lucy, Lady Duff–Gordon, 222 N. Y. 88; 118 N. E. 214). Those words were used in a case based upon a contract, but the observation is far reaching in its permissible application, including statutes and wills and indeed everything where special efforts are made to ascertain the intention behind the words used, for, after all, words are but vehicles for thought––sometimes poor ones.
The precise word here involved, upon which the water company chiefly bases its motion to dismiss is “bond”, especially as that word appears in section 3506 of the Revised Laws, which section is a combination of acts of 1895 and 1905, both intended to make appellate procedure easier for the litigant seeking review.
That section––most strikingly of a remedial nature––was made to include, in 1905, motions for new trials and writs of errors, as well as bills of exceptions and appeals covered by the act of 1895, and, on the date here involved, October 1 last, provided, inter alia, “No ... writ of error shall be dismissed for any informality or insufficiency of any bond, unless ...”, etc.
The majority of the court hold that any comfort the plaintiffs in error would seek to obtain from the first of those words just quoted is prevented by the use of the word “bond” and proceed to give a strictly technical definition of that word, well known generally to most people outside of Hawaii as a “written” instrument, etc.
Counsel for the defendant in error has ridiculed the idea that a bond can be anything else than a writing and referred to a “cash bond” as an expression contradictory in its terms, indeed, an absurdity. However, on October 2, the expression was not considered by the Chief Justice of this court as a legal monstrosity. He signed an order in this very proceeding approving “the deposit of a cash bond.” A fair presumption is that he did not do that “inadvertently” and “improvidently” as stated in the motion to dismiss.
For the last twenty–five years, that is, since the enactment of the amendment to what is now section 5430 of the Revised Laws, concerning bail in criminal cases, there has been in use in Hawaii the expression “cash bond”, for in that amendment the legislature made provision for a bond of just that kind, whatever the commonly accepted idea had been theretofore, here and elsewhere, as to a bond. Again, in 1929, there was enacted what is now section 5431, which begins: “All money deposited by way of bail or bond, ...” Clearly the reference was to cash bonds then well known here for twelve years, that is, since the 1917 statute.
So, although having its origin in criminal practice, there has long been in Hawaii such a thing as a “cash bond”. Certainly it is not a novelty.
“Bond” appears in each of the sections of the Revised Laws directly before the court now, section 3556––the writ of error statute––and section 3506––the statute minimizing “any informality or insufficiency” in a bond involved in appellate proceedings. It is because section 3506 is unquestionably a remedial statute––one entitled to and indeed demanding the most liberal construction possible––that “bond” there used may be given a meaning different from the one it usually has––and this is so...
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