Hym v. Tong

14 Haw. 300, 1902 Haw. LEXIS 78

Opinion

OPINION OF THE COURT BY

PREAR, C.J.

In this case as in that of M. Phillips & Co. v. Lun Chong Co., ante 295, argument was heard on a. motion to- dismiss and on the merits. Several of the questions raised were the same in both cases, but in this case the following additional questions were raised.

On the motion it was contended that it should be made to appear that the point of law appealed upon was raised in the Magistrate’s court, and that it is not sufficient for the certificate to say that certain points are relied on in the notice of appeal. In tiiis case the Magistrate certifies that an appeal was “duly noted * * * upon the following points,” and then sets out the points. This was sufficient. Afong v. Kaala, 7 Haw. 521; Rep. v. Kanalo, 11 Id. 435.

Peterson & Matthewman for plaintiff. Russell & Watson for defendant. Robertson & Wilder for garnishee.

As to the garnishee, there was the same testimony as in the other case. But here only one of the partners was defendant. Although a debt owing to one partner may be garnished in an action against the partnership, and some authorities hold that a debt owing to the partnership may be garnished in an action against one of its members, the weight of authority on the latter question is the other way. Stellings v Young, 161 Mass. 287; Gale v. Barnes, 66 N. H. 183; Sweet v. Read, 12 R. I. 121; Myers v. Smith, 29 Or. St. 120; Bartlett v. Woodward, 46 Vt. 100; Dawson v. Railroad Co., 97 Mich. 33.

The judgment appealed from is affirmed as to the defendant and reversed as to the garnishee and the latter is discharged.