I respectfully dissent. The bond in the case at bar served a substantial purpose. It operated as a stay of execution. With it on file the motion could not have been dismissed on account of insufficiency of the bond except in conformity with the provisions of section 2538, R.L. 1925, which are as follows: "No motion for a new trial, bill of exceptions, appeal or writ of error shall be dismissed for any informality or insufficiency of any bond, unless upon neglect of the party filing such bond to comply with an order of a court or judge having jurisdiction directing an amendment of such bond to be made or a new bond to be filed within a specified time, not less than twenty-four hours." See Wright v. Brown, 11 Haw. 401; Tomishima v.Hurley, 24 Haw. 662, and Kahepu v. King, 25 Haw. 137, 139.
The provisions of the statute providing for a bond upon motion for a new trial and setting forth its condition are for the protection of the plaintiff and may be waived by the plaintiff. "Probably," said this court in Territory v. Cotton Bros.,17 Haw. 374, 383, "no court would hold that the objection of the want of a bond would be good if made for the first time after decision of the motion for a new trial or appeal as the case might be." Later in the same case, in referring to Coleman v.Coleman, 5 Haw. 300, the court proceeded: "The Coleman case has been considered as establishing the proposition in this jurisdiction that defects of the kind now *Page 357 in question may be waived by counsel and are waived * * * by failure to raise the question at all until after decision. * * * If there was a waiver in the present case it was by implication. What is sufficient to show such a waiver? A waiver partakes to some extent of the nature of an estoppel. It is sometimes called a quasi-estoppel. In general, unless it is express, it is shown either by such laches or by such inconsistent action as shows an intention not to rely upon the objection." In the instant case the plaintiff did not avail herself of her statutory right to obtain a court order for a new or amended bond but proceeded to a submission of the motion for a new trial on the bond filed. That fact, I believe, estops her now from objecting to the sufficiency of the bond in question, which has long since served its purpose, or from objecting to the taxing as costs the amount sworn to by attorneys for the defendant as their disbursement on account of premium for the execution of the same.
I believe the item above referred to should be allowed.