OPINION OF THE COURT BY
WATSON, J.
(Quarles, J., dissenting.)
The defendant in error (plaintiff below) moves to dismiss the writ of error sued out by the defendants on the ground that the judgment and execution thereon are fully satisfied. The petition for the writ was filed and the writ issued on September 28, 1915. The action was one for summary .possession originally brought in the circuit court of Wailuku, Maui. The declaration in the district court is as follows:
“That heretofore, to wit, on the 4th day of November, 1913, the plaintiff herein did demise, let and lease unto Ham Pong' and Kong Kee, all of those certain premises situate on Market street, in Wailuku, County of Maui, Territory of Hawaii, being the same premises conveyed to the said Manuel Silva Novite by W. T. Robinson and wife, by deed dated January 22, 1912, and recorded in liber 360, on pages 44-46, the said premises being more particularly described in that certain indenture of lease dated November 4, 1913, duly executed and entered into by Manuel Silva Novite and Ham Pong and Kong Kee.
“That said lease was, on the 9th day of January, 1915, sold by the sheriff of the county of Maui under and by virtue of an execution issued out of the circuit court of the second circuit. That Ham Pong, trustee, and Ah Sing were the purchasers of said lease at such sale and went into possession and occupation of said premises and are now in possession and occupation thereof.
“That the defendants as lessees aforesaid promised and agreed to abide by the conditions set forth in said lease and thereby promised to pay a yearly rental of $480.00 payable quarterly in advance.
“That there is now due and owing the plaintiff herein from the defendants herein rent amounting to $120.00 payable in advance, same being for the quarter beginning [67] January 1, 1915, as set forth in the lease, a copy of which is attached hereto marked Exhibit ‘A.’
“That because of covenants broken, to wit the non-payment of rent, defendants are now in possession of said premises and are holding the same unlawfully and against the rights of the plaintiff.
“Wherefore plaintiff prays that the lease hereinabove mentioned may be cancelled and annulled and that defendants may be ousted from the possession and occupation of said premises, and that plaintiff may be restored to the possession thereof.”
Defendants’ plea was the general issue, and the court, after hearing the evidence, rendered judgment in favor of plaintiff for the possession of the premises and for his costs. ■No plea to the jurisdiction was interposed in the district court, nor did it appear from the evidence there introduced that title to real estate was involved. From this judgment defendants appealed to the circuit court, second circuit, where the case was heard, jury waived. On April 20, 1915, the court filed its written decision in favor of plaintiff, and the judgment, following the written decision of the court, was that plaintiff have immediate possession of the premises, for his costs, and that execution and writ of possession issue accordingly. Judgment was duly entered and filed on April 20, 1915, and thereafter on the same date execution, namely, a writ of possession issued. It appears from the return of the officer indorsed on the writ that the same was executed on the 20th day of April, 1915, by delivering to the plaintiff possession of the premises; and it is further made to appear by the certificate of Edmund H. Hart, clerk of the circuit court of the second circuit, filed in this court on October 9, 1915, that on April 28, 1915, after the entry of judgment and before the writ of error was sued out from this court, that defendants deposited the sum of $37.30, costs accrued, in said second circuit court. The plaintiff having been put into possession of the premises and the [68] accrued costs having been paid, it is apparent that the judgment has been satisfied and there is nothing for which execution might issue. Section 2518, R. L. 1915, provides:
“A writ of error may be had by any party deeming himself aggrieved by the decision of any justice, judge or magistrate, or by the decision of any court except the supreme court, or by the verdict of a jury, at any time before execution thereon is fully satisfied, within six months from the rendition of judgment.”
As will be seen, the statute modifies the common law rule to the extent that the writ must issue before the execution has been fully satisfied. Ting v. Born, 21 Haw. 638, 640. From what has been stated above it necessarily results that if the writ of possession was legally and properly issued the motion to dismiss the writ of error must be granted.
The judgment in this case being that of a circuit court, execution thereunder, i.e., the writ of possession, might issue at any time “unless stayed as provided by law.” Sec. 2441, R.L. 1915.
There is no merit in the contention of counsel for plaintiffs in error that the plea entitled “Plea to the Jurisdiction,” interposed by defendant Ah Sing in the circuit court, should have been sustained. The so-called plea to the jurisdiction is as follows:
“Comes now, Ah Sing, one of the above named defendants by Eugene Murphy, his attorney, and says that the above entitled court ought not to take cognizance of this action for the reason that at the commencement of said action and ever since thereof this defendant is in possession of the premises described in the complaint herein, not as alleged by the plaintiff under a lease from plaintiff to Ham Pong and others, but by virtue of a judicial sale of the said premises of all the right, title and interest in the said premises of the Hop Sing Company, a copartnership, duly registered; that defendant is not and never has been tenant as alleged in the complaint herein. That defendant is in possession of the premises described in the complaint herein as successor in interest, by mesne conveyances, of all the [69] right, title and interest of the Hop Sing Company, a co-partnership, in and to the said premises. That therefore the defendant, Ah Sing, is the owner of all the right, title and interest of the said Hop Sing Company, a copartnership, in and to the said premises described in the complaint herein. That the defendant is not the tenant under any other leasehold.”
Presumably an affidavit by the defendant Ah Sing accompanied this so-called plea in the circuit court, but the purported copy of such affidavit, as the same appears in the record before us, is not subscribed by said defendant Ah Sing or any person whomsoever. For the purposes of this appeal, however, we will assume that the affidavit was duly subscribed. The affidavit is as follows:
“Territory of Hawaii, )
“County of Maui. ) SS-
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OPINION OF THE COURT BY
WATSON, J.
(Quarles, J., dissenting.)
The defendant in error (plaintiff below) moves to dismiss the writ of error sued out by the defendants on the ground that the judgment and execution thereon are fully satisfied. The petition for the writ was filed and the writ issued on September 28, 1915. The action was one for summary .possession originally brought in the circuit court of Wailuku, Maui. The declaration in the district court is as follows:
“That heretofore, to wit, on the 4th day of November, 1913, the plaintiff herein did demise, let and lease unto Ham Pong' and Kong Kee, all of those certain premises situate on Market street, in Wailuku, County of Maui, Territory of Hawaii, being the same premises conveyed to the said Manuel Silva Novite by W. T. Robinson and wife, by deed dated January 22, 1912, and recorded in liber 360, on pages 44-46, the said premises being more particularly described in that certain indenture of lease dated November 4, 1913, duly executed and entered into by Manuel Silva Novite and Ham Pong and Kong Kee.
“That said lease was, on the 9th day of January, 1915, sold by the sheriff of the county of Maui under and by virtue of an execution issued out of the circuit court of the second circuit. That Ham Pong, trustee, and Ah Sing were the purchasers of said lease at such sale and went into possession and occupation of said premises and are now in possession and occupation thereof.
“That the defendants as lessees aforesaid promised and agreed to abide by the conditions set forth in said lease and thereby promised to pay a yearly rental of $480.00 payable quarterly in advance.
“That there is now due and owing the plaintiff herein from the defendants herein rent amounting to $120.00 payable in advance, same being for the quarter beginning [67] January 1, 1915, as set forth in the lease, a copy of which is attached hereto marked Exhibit ‘A.’
“That because of covenants broken, to wit the non-payment of rent, defendants are now in possession of said premises and are holding the same unlawfully and against the rights of the plaintiff.
“Wherefore plaintiff prays that the lease hereinabove mentioned may be cancelled and annulled and that defendants may be ousted from the possession and occupation of said premises, and that plaintiff may be restored to the possession thereof.”
Defendants’ plea was the general issue, and the court, after hearing the evidence, rendered judgment in favor of plaintiff for the possession of the premises and for his costs. ■No plea to the jurisdiction was interposed in the district court, nor did it appear from the evidence there introduced that title to real estate was involved. From this judgment defendants appealed to the circuit court, second circuit, where the case was heard, jury waived. On April 20, 1915, the court filed its written decision in favor of plaintiff, and the judgment, following the written decision of the court, was that plaintiff have immediate possession of the premises, for his costs, and that execution and writ of possession issue accordingly. Judgment was duly entered and filed on April 20, 1915, and thereafter on the same date execution, namely, a writ of possession issued. It appears from the return of the officer indorsed on the writ that the same was executed on the 20th day of April, 1915, by delivering to the plaintiff possession of the premises; and it is further made to appear by the certificate of Edmund H. Hart, clerk of the circuit court of the second circuit, filed in this court on October 9, 1915, that on April 28, 1915, after the entry of judgment and before the writ of error was sued out from this court, that defendants deposited the sum of $37.30, costs accrued, in said second circuit court. The plaintiff having been put into possession of the premises and the [68] accrued costs having been paid, it is apparent that the judgment has been satisfied and there is nothing for which execution might issue. Section 2518, R. L. 1915, provides:
“A writ of error may be had by any party deeming himself aggrieved by the decision of any justice, judge or magistrate, or by the decision of any court except the supreme court, or by the verdict of a jury, at any time before execution thereon is fully satisfied, within six months from the rendition of judgment.”
As will be seen, the statute modifies the common law rule to the extent that the writ must issue before the execution has been fully satisfied. Ting v. Born, 21 Haw. 638, 640. From what has been stated above it necessarily results that if the writ of possession was legally and properly issued the motion to dismiss the writ of error must be granted.
The judgment in this case being that of a circuit court, execution thereunder, i.e., the writ of possession, might issue at any time “unless stayed as provided by law.” Sec. 2441, R.L. 1915.
There is no merit in the contention of counsel for plaintiffs in error that the plea entitled “Plea to the Jurisdiction,” interposed by defendant Ah Sing in the circuit court, should have been sustained. The so-called plea to the jurisdiction is as follows:
“Comes now, Ah Sing, one of the above named defendants by Eugene Murphy, his attorney, and says that the above entitled court ought not to take cognizance of this action for the reason that at the commencement of said action and ever since thereof this defendant is in possession of the premises described in the complaint herein, not as alleged by the plaintiff under a lease from plaintiff to Ham Pong and others, but by virtue of a judicial sale of the said premises of all the right, title and interest in the said premises of the Hop Sing Company, a copartnership, duly registered; that defendant is not and never has been tenant as alleged in the complaint herein. That defendant is in possession of the premises described in the complaint herein as successor in interest, by mesne conveyances, of all the [69] right, title and interest of the Hop Sing Company, a co-partnership, in and to the said premises. That therefore the defendant, Ah Sing, is the owner of all the right, title and interest of the said Hop Sing Company, a copartnership, in and to the said premises described in the complaint herein. That the defendant is not the tenant under any other leasehold.”
Presumably an affidavit by the defendant Ah Sing accompanied this so-called plea in the circuit court, but the purported copy of such affidavit, as the same appears in the record before us, is not subscribed by said defendant Ah Sing or any person whomsoever. For the purposes of this appeal, however, we will assume that the affidavit was duly subscribed. The affidavit is as follows:
“Territory of Hawaii, )
“County of Maui. ) SS-
“Ah Sing of full age being duly sworn on his oath according to law deposes and says that he is one of the defendants above named that he has read the foregoing plea to the jurisdiction of this court; that he knows the contents thereof and the same are true. Deponent further states that he files this plea in his own behalf for the reason that the said defendant Ham Pong herewith joined with him is not in possession of the said lands described in the complaint herein; and is not in any manner connected with deponent; nor has the said Ham Pong, as trustee, or otherwise any interest or possession in common with deponent, in the lands in the complaint herein named.
“Subscribed and sworn to before me this 19th day of April, A. D. 1915.
“Eugene Murphy (Seal)
“Notary Public, Second Circuit,
“Territory of Hawaii.”
Rule 15 of this court, under the title, “Defense of Title in District Courts,” provides:
“Whenever, in the district court, in defense of an action of trespass, or a suit for the summary possession of land, or any other action, the defendant shall plead to the jurisdic[70] tion in effect that the suit is a real action, or one in which the title to real estate is involved, such plea shall not be received by the court, unless accompanied by an affidavit of the defendant, setting forth the source, nature and extent of the title claimed by defendant to the land in question, and such further particulars as shall fully apprise the court of the nature of defendant’s claim.”
The reasons for the promulgation of this rule are succinctly stated in the opinion of this court in Brown v. Koloa S. Co., 12 Haw. 409, 411, 412, where it is said:
“In Ward v. Kamanaoulu, 9 Haw. 619, in an action of trespass quare clausum fregit, the court held that a plea of title in defendant without adducing evidence to sustain it, was sufficient to oust the district magistrate of his jurisdiction, there being no statute or rule requiring more. 'That a remedy might have to be provided was thought of in 1879, where the court remark in Coney v. Manele, 4 Haw. 157, 'if dishonest pleas should be set up by defendants undoubtedly effectual means will be found to obviate the effects of such dishonesty.’ A rule will be made to apply to future cases.’ This case was decided February 25, 1895, and on March 1, 1895, the supreme court rule or order to the district magistrates was made.”
Rule 15 of this court is only applicable in district courts, but even under the practice prevailing in those courts the affidavit above quoted is clearly insufficient under the ruling of this court in Coerper v. Gouveia, 21 Haw. 270, 272.
As has been stated, the jurisdiction of the district court was not questioned, nor did it appear from the evidence in that court that the title to real estate was involved. From an inspection of the plea and the accompanying affidavit filed in the circuit court it will be seen that defendant Ah Sing admits being in possession of the premises described in the complaint, but alleges that he is in possession “as successor in interest by mesne conveyances of all the right, title and interest of the Hop Sing Company, a co-partnership,” etc. What interest the Hop Sing Company claimed or possessed is not stated, nor does it appear that [71] said company, or the defendants under them, had or claimed any interest or title adverse to the plaintiff. Neither the plea nor the affidavit shows that the title to real estate was in any wise involved. In fact, the plea is a mere amplification of the allegation contained in the declaration “that said lease was, on the 9th day of January, 1915, sold by the sheriff of the County of Maui under and by virtue of an execution issued out of the circuit court of the second circuit. That Ham Pong, trustee, and Ah Sing were the purchasers of said lease at such sale and went into the possession and occupation of said premises and are now in possession and occupation thereof.”
D. H. Case and E. Vincent for the motion.
E. Murphy contra.
Conceding the correctness of the rule contended for by counsel for plaintiffs in error, that the question of jurisdiction may be raised at any time, and that if the district court had no jurisdiction the circuit court on appeal would have none, we are of the opinion that the circuit court was not ousted of jurisdiction by the filing in that court of the plea and affidavit above set out, but might properly proceed, as it did, to hear evidence and determine whether the title was actually in question. The circuit court found from the evidence that the relation of landlord and tenant existed, and the plea was properly overruled.
It follows from what has been said that in our opinion the motion to dismiss the writ of error should be granted, and it is so ordered.