CHAPTER XVIII.

 

OF THE ISSUING OF EXECUTIONS, AND PROCEEDINGS THEREUPON.

 

§1016.  Every circuit judge at chambers, police justice and district justice, shall, at the request of the party recovering any civil judgment in his court, unless such judgment be duly appealed from, issue his execution against the property of the party recovered against, which execution may be in the following form:

 

To any constable of the district of _____________, Island of __________, H.I.:

You are commanded to levy upon the personal property of _____________, if any within your district, and if sufficient cannot be found then upon his real property within said district, and giving thirty days previous notice as required by law, to sell the same, or so much thereof as may be found necessary, at public sale to the highest bidder, in order to satisfy a judgment rendered by me against him in favor of _____________  _____________, on the __________ day of ____________, 18____, for ___________ dollars, the costs of court inclusive, collecting also the legal interest thereon, from the date thereof, and your costs and the expenses of levy, advertisement and sale.  Make due return to me of this writ, with your proceedings thereon, and the money by you so collected, on or before the expiration of ________ days; and hereof fail not at your peril.

Given under my hand this ________ day of ____________, 18_______.

______________ 

Police Justice (or as the case may be). 

 

§1017.  The provisions of the last preceding section shall not apply to the issuing of execution upon a judgment entered up by the order of a circuit judge, in any cause or proceeding in the circuit court, but I such case the execution shall be issued in the manner and form prescribed for courts of record.

 

§1018.  All executions issued by a circuit judge at chambers, police justice or district justice, shall be made returnable within sixty days from the date thereof.

 

§1019.  The forms of executions to be issued from courts of record shall be the same as have been heretofore established by the usage and practice of such courts; but alterations therein may, from time to time, be made, or allowed by the Supreme Court, when necessary to adapt them to changes in the law, or for other sufficient reasons.

 

§1020.  All writs of execution, whether civil or criminal, issuing from any court of record, shall be addressed to the marshal, or his deputy, and shall be signed by the clerk of such court, and impressed with the seal thereof.

 

§1021.  Every officer receiving a writ of execution issued in due form by any court or justice, shall note thereon the day and hour of its receipt, and he shall give priority in levying upon property of the defendant in execution, to the writs received by him according to the order of time in which they are received.

 

§1022.  Every levy by an officer, in pursuance of a writ of execution issued by any court or justice, shall be made by taking the property levied upon into his possession, care and guardianship, and in his option, by removal of the same to some place of security.  The officer shall make an inventory of the property levied upon.

 

§1023.  The officer shall, after levy, advertise for sale the property levied upon, whether real or personal, for thirty days, or for such time as the court shall order, by posting a written or printed notice, in three conspicuous places within the district where such property is situated, and if on the island of Oahu, by advertisement thereof in the Government Gazette.

 

§1024.  The officer shall, on the day and at the place set for such public sale, unless paid the amount f the judgment, interest and costs, and his fees and disbursements accrued upon the writ, sell the property advertised to the highest bidder.  He shall deduct from the proceeds of the sale sufficient for the full satisfaction, if possible, of the execution and his costs, expenses and commissions, and return the said writ, satisfied wholly or in part, paying the amount collected thereon to the plaintiff in execution or his attorney.

 

§1025.  If, at the time appointed for the sale, the officer shall deem it expedient, and for the interest of all persons concerned therein, to postpone the sale, for want of purchasers or for other sufficient cause, he may postpone it for any time not exceeding seven days, and so from time to time, for like good cause, until the sale shall be complete; giving notice of every such adjournment, by a public declaration thereof, at the time and place previously appointed for the sale.

 

§1026.  The officer shall execute and deliver, to any purchaser at any such sale, such certificate of purchase, or conveyance, as may be necessary.

 

§1027.  No sale by execution shall operate to convey a greater estate or interest in the property sold, than the defendant in execution had at the time of such sale; and all such sales of property not belonging to the defendant, shall subject the officer to the private action of the purchaser, being afterwards deprived thereof by the real owner.

 

§1028.  The officer serving any execution shall act upon his own private accountability, for all excesses of his official powers, and for any departure from the legal import of the writ or mandate in his hands.

 

§1029.  If, upon an execution being issued by a circuit judge at chambers, or by a police or district justice, no property, or not a sufficient amount of property, belonging to the defendant in execution, can be found within the jurisdiction of the judge or justice issuing the execution, and the same is returned unsatisfied either wholly or in part, the plaintiff in execution may, upon procuring a certified copy of the judgment and execution in the court below, to be docketed in the office of the clerk of the Supreme Court, sue out a writ of execution from said Supreme Court, which shall be available against the property of the defendant, whenever situated within the Kingdom.

 

§1030.  Any circuit court, out of which an execution has been issued, if such execution has been returned unsatisfied wholly or in part, may issue an alias execution to the same circuit, or an execution leviable in some other circuit, for the satisfaction of the unpaid remainder of the judgment and additional costs, expenses and commissions, which alias or testatum writ of execution shall be served by the marshal, or his deputy, in like manner as the original.

 

§1031.  No original execution shall be issued, unless within one year after the party shall be entitled to sue out the same, and no alias, or other successive execution, shall be issued afterwards, unless each one be sued out within one year after the return day of that which preceded it.

 

§1032.  If a judgment remains unsatisfied, after the expiration of the time for taking out execution thereon, the plaintiff may have scire facias to obtain a new execution, or he may, at any time after the judgment, have an action of debt thereon.

 

§1033.  Any judge of a court of record may, by order at chambers, in any cause in which an execution shall have been issued, grant a stay thereof in the officer’s hands, for equitable reasons, when no appeal or writ of error is granted, upon the defendant giving bond and security for its payment with costs up to the said stay.  The property levied upon shall not be released from the levy by the stay of execution, and in case at the end of the time accorded the condition of such bond be not complied with, the plaintiff in execution may elect whether to proceed to the sale of the levied property, or to enforce the bond:  provided, that if the levied property be not sufficient to pay the judgment, with all costs, expenses and commissions, the stay inclusive, the sureties in the bond shall be answerable for the deficiency.  And when justice may require the renewal of any execution, any judge of a court of record shall have power so to order.

 

§1034.  Bonds of indemnity given to an officer, as provided in section 274, shall be collectable by the officer receiving the same, upon citation to show cause and proof of the signatures thereto, without the intervention of a jury, and the damages to be assessed thereon shall be the amount recovered against the said officer, with interest and costs of suit, and the expenses of such citation and judgment of indemnity, for which execution may be issued against the co-obligors, both jointly and severally, leviable as in other cases of indebtedness.

 

§1035.  The following property when owned by any person being a housekeeper, and having a family, shall be exempt from levy and sale on execution:

The family bible, family pictures, and school books, two swine or six goats, and all necessary fish, meat, flour and vegetables, and one piece of land where kalo is growing, or any other vegetable, provided the same does not exceed one-half an acre, actually cultivated for family use, likewise a house lot not to exceed one quarter of an acre, and the dwelling house and other buildings thereon situated, providing the value thereof shall not exceed two hundred and fifty dollars.  But this exemption shall not apply to mechanics and material men for labor performed and material furnished in the erection of such buildings.  All necessary wearing apparel, mats, beds, bedsteads and bedding, for such person and his family.  One poi board, two calabashes, one o-o, one table, six chairs, six knives and forks, six plates, six tea cups and saucers, one sugar dish, one milk pot, one tea pot, one coffee pot and six spoons.  The tools and implements of any mechanic necessary for carrying on his trade or business, not exceeding fifty dollars in value.

The uniform of any officer or private, belonging to any of the military forces of the Kingdom, his arms and accoutrements.

 

 

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