
    SUE TANAKA AND M. HAMASAKI v. C. C. CONRADT, DISTRICT MAGISTRATE OF WAILUKU, COUNTY OF MAUI, TERRITORY OF HAWAII, AND J. V. MACIEL.
    No. 1597.
    Original.
    Argued January 5, 1925.
    Decided January 9, 1925.
    Peters, C. J., Perry and Lindsay, JJ.
    Landlord and Tenant — summary possession — tender of interest.'
    
    Under section 2762, R. L. 1915, payment or tender of interest on tbe amount of tbe rent due is unnecessary.
    
      Same — same—stay of warrant of removal — tender of rent and, costs.
    
    Tender by tbe tenant to tbe landlord, after judgment for restitution of tbe property but before issuance of a warrant of removal, of tbe rent due and all tbe costs and charges of tbe proceedings, stays issuance of tbe warrant im a statutory action for summary possession and renders tbe judgment inoperative and unenforceable.
   OPINION OF THE COURT BY

PERRY, J.

(Peters, C. J., concurring.)

In a statutory action for 'tbe summary possession of land beld by a tenant, tbe landlord, one of tbe present respondents, secured after trial from tbe district magistrate, tbe other respondent in this proceeding, a judgment granting bis prayer for tbe. restitution of tbe demised property.' Tbe sole ground of tbe action for summary possession was tbe failure of tbe tenant to pay rent that was due and payable. Before judgment tbe tenant tendered to tbe lessor in court tbe full amount of tbe rent due; and after tbe rendition of tbe judgment but before issuance of a warrant of removal tbe tenant tendered to tbe lessor tbe full amount of tbe rent due together with the costs and charges of the judicial proceedings. Both tenders were refused by the lessor. The plaintiff in the action asked the magistrate to issue a warrant for the removal of the tenant from the demised premises. The tenant objected on the ground that tender had. been made of the rent due and of the costs and charges of the proceedings. After argument the magistrate decided that he would issue a warrant of removal but at the request of the tenant and with the acquiescence of the landlord delayed the actual issuance of the warrant for a sufficient length of time to permit the tenant to institute in this court proceedings to determine the power of the magistrate to issue a warrant of removal under the circumstances recited. Upon application by the tenant a temporary writ was issued out of this court prohibiting the magistrate from issuing a warrant of removal and from otherwise proceeding in the cause.

In the argument before this court counsel for the landlord stated that he wished to make no point of insufficiency of the tenders made by the tenant other than that the tenders did not include any interest upon the amount of the rent due.

The relevant provisions of our statute are as follows: “Whenever a warrant shall be issued as aforesaid for the removal of any tenant, the contract for the use of the premises, if any such exists, and the relation of landlord and tenant between the parties, shall be deemed to be canceled and annulled” (R. L. 1915, Sec. 2761). “The issuing of such warrant of removal shall be stayed in the case of a proceeding for the nonpayment of rent, if the person owing such rent, shall, before such warrant is actually issued, pay the rent due, and all the costs and charges of the proceedings;, or give such security for the payment thereof, within five days, as shall be satisfactory to the magistrate or to the plaintiff” (75., Sec. 2762). The language of the statute, as to what is required to be done by the tenant in order to stay the issuance of the warrant of. removal, is entirely clear and unambiguous. It is that the tenant shall “pay the rent due, and all the costs and charges of the proceedings.” The enumeration of these things that are required to be done excludes all others. It would have been just as simple and practicable for the legislature to provide-that interest on the rent should be paid as.it was to provide that the costs and charges of the proceedings should be paid. To hold that interest is also required to be paid would be to add an item to the list of those prescribed by the legislature.

The only other contention advanced by the respondents is that section 2762 has no application in a case, such as that at bar, in which the judgment of restitution of the property to the landlord is not appealed from. There is, however, no such limitation in the language of the statute. The provision is that the lease and the relation of landlord and tenant are to be deemed to be canceled and annulled whenever the warrant of removal is issued and, inferentially, not until then. Whatever may be true of judgments in other proceedings, those in actions for summary possession do not of themselves, without a warrant of removal, have the legal effect of canceling and annulling the lease or the relation of landlord and tenant. The language of section 2762 is unqualified, that the issuing of the warrant shall be stayed if the defaulting tenant shall, before its actual issuance, pay the rent due and all the costs and charges of • the proceedings. There is no difficulty in understanding the intent of the legislature. • The purpose, undoubtedly, was to afford a measure of protection to defaulting tenants against what might be deemed to be undue harshness on the part of landlords in collecting the rents. With the wisdom of the provision, of course, we are not concerned.

E. R. Bevins for petitioners.

E. Vincent for respondents.

In Paris v. Vasconcellos, 14 Haw. 590, 592, this court took the same view of the meaning and operation of section. 2762. In that case, as in this, there was a breach of the covenant to pay rent and a tender into court by the defaulting tenant of the amount of the rent due. The court, quoting the same statutory provision now under consideration, said: “The breach of the covenant to pay rent was cured by the tender made in court. Even if the tender had not been made until after judgment, the writ of possession could not be legally issued.”

The writ of prohibition is made perpetual.

CONCURRING OPINION OP

PETERS, C. J.

Were this a matter of first impression I should be inclined to doubt the interpretation placed by this court in the case of Paris v. Vasconcellos, 14 Haw. 590, upon the provisions of section 2762, E. L. 1915, as to the effect of a person owing the rent, before the actual issuance of the writ of possession, paying the rent due and all the costs and charges of the proceedings, but numerous legislatures have convened since February, 1903, when that case was decided, and in the absence of adverse legislation the ruling may be considered as having been acquiesced in and become a rule of property, from which nothing short of a conviction of error should induce me to depart. I therefore concur in the conclusion that the writ should be made perpetual.  