Stables v. Ferry

• Decision Date: 28 September 1914
• Citation: 22 Haw. 229
• Court: Hawaii Supreme Court
• Parties: THE VOLCANO STABLES & TRANSPORTATION COMPANY, LIMITED, PLAINTIFF, v. J. S. FERRY, DEFENDANT; J. G. SERRAO, GARNISHEE.

22 Haw. 229

THE VOLCANO STABLES & TRANSPORTATION COMPANY, LIMITED, PLAINTIFF,

v.J. S. FERRY, DEFENDANT; J. G. SERRAO, GARNISHEE.

Supreme Court of the Territory of Hawai‘i.

Submitted September 21, 1914.

Decided September 28, 1914.

RESERVED QUESTIONS FROM CIRCUIT COURT, FOURTH CIRCUIT.

Syllabus by the Court

The expression “circuit judge (or court) at chambers” has two meanings in the statutes of this Territory. It may refer either to the independent jurisdiction exercised at chambers pursuant to R. L. Sec. 1648, or to the incidental jurisdiction exercised at chambers in connection with or ancillary to an action at law. A proceeding for the attachment of a debt due a judgment debtor pursuant to R. L. Secs. 2117, 2118, may be had in exercise of the jurisdiction of the latter kind.

Under R. L. Sec. 2117, the direction to the judgment debtor should be to appear for examination as to any and what debts are owing to him, but it is not such a defect as to require the quashal of the order that the direction was to appear and show cause why a particular debt due to him should not be attached and paid to the judgment creditor. Both debtor and garnishee may be summoned at the same time and pursuant to the one order.C. S. Carlsmith for plaintiff.

Harry Irwin for defendant.

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

OPINION OF THE COURT BY ROBERTSON, C. J.

The plaintiff filed in the court below a sworn petition setting forth that in an action of assumpsit commenced in the circuit court of the fourth judicial circuit by the plaintiff against the defendant, the plaintiff recovered judgment on the 16th day of June 1913, in the sum of $797.70; that the sum of $202.50 has been paid to the plaintiff on account of said judgment; that the sum of $595.20 is due and owing, and that to said amount said judgment remains unsatisfied; and that J. G. Serrao, named herein as garnishee, is indebted to the defendant and is within the jurisdiction of the court. The prayer of the petition was “that upon a day certain to be set by your honor the said J. G. Serrao and the said J. S. Ferry shall be summoned to appear before your honor and that each of them may show cause why the amount due from the said garnishee to the said defendant should not be paid by the said garnishee to the said plaintiff or so much thereof as may be sufficient to satisfy the said judgment debt of $595.20 and that plaintiff may have judgment against the said garnishee for such sum as may be then and there found due from the garnishee to the said defendant and for costs and such other and further relief as to the court may seem meet.” Upon this petition the circuit judge made and entered an order directing “that the said J. S. Ferry and J. G. Serrao be each served with a copy of this order and of the petition herein filed and that they be summoned to appear before me at my chambers in Hilo on Tuesday the 3rd day of March, A. D. 1914, at 10 o'clock, A. M. there to show cause, if any they have, why the debt due from the said J. G. Serrao to the said J. S. Ferry should not be attached in the hands of the said J. G. Serrao and that a judgment be entered against the said defendant and the said garnishee requiring the said garnishee to pay such debt as he shall then owe to the said plaintiff.” The petition, order and summons were entitled “in the Circuit Court of the Fourth Judicial Circuit, Territory of Hawaii. In Chambers.” After service of the order the defendant appeared specially and filed a motion to quash the order upon several grounds which involved two questions which the circuit judge reserved for the consideration of this court, viz: (1) Under the circumstances set forth in this certificate and in the records transmitted...