
    LUCIO FERREIRA v. KAMO; PAAUHAU SUGAR PLANTATION COMPANY, GARNISHEE.
    Appeal from District Magistrate oe Hamakua, Haavaii.
    Argued January 16, 1909.
    Decided January 25, 1909.
    Hartwell, C.J., Wilder and Ballou. JJ.
    Appeal and error — amendment of record t>y district magistrate.
    
    A motion to amend the record of a district magistrate, accompanied by an offer to prove the record erroneous or incomplete in material particulars, should be heard and decided by the magistrate upon the evidence offered and any counter evidence that may be produced.
   OPINION OP THE COURT BY

BADLOU, J.

This is an appeal from an order of the district magistrate of Hamakua overruling a motion to amend the record made in conformity with the opinion of this court in Ferreira v. Kamo, 19 Haw. 187. The motion, made under special appearance, specifically asks that a certain lease and deed be added to the record in order to complete it, and that the record be reformed by eliminating therefrom the statement that the Paauhau Sugar Plantation Company, garnishee in the case, appeared by attorney R. H. Makekau. In support of the motion the plantation made a written offer to prove that said deed and lease were the same papers referred to bv one of the witnesses in the action and were taken under consideration by the court, and furthermore that said R. IT. Makekau did not during the trial of the action or at any other time appeal* as its attorney. According* to the record now sent up this motion was overruled by the district magistrate without hearing any evidence or without giving the garnishee the opportunity of proving what it formally offered to prove.

ti. F. Chilling worth for plaintiff.

No appearance for defendant.

//. F. Cooper for garnishee.

The refusal of the district magistrate to hear the evidence offered was either arbitrary or based upon the theory that if the garnishee had proved all that it offered to prove the motion must still be denied. Upon either theory his ruling was erroneous. There may be considerable doubt as to the right of the garnishee to have inserted in the record a deed and lease which were merely referred to by a witness but not formally introduced in evidence, even if the court afterwards examined-them, but there can be no doubt as to its right to have the record amended by striking out the allegation that Makekau appeared for the garnishee as well as for the defendant if the garnishee can prove that such was not the fact. This court is now asked to take the garnishee’s version of the facts for granted in view of the offer of proof, but this we cannot do. The district magistrate should, as we endeavored to make clear in the last decision, hear the evidence offered on behalf of the garnishee and any evidence upon the same subject which may be offered by any other party and decide the motion lipón the facts thus presented.

The appeal is sustained and the case remanded for further proceeding's in conformity with this opinion.  