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Civil Remedies and Procedure [Title 43]

Title 43

CIVIL REMEDIES AND PROCEDURE

Chapters:
01 General Provisions
02 Procedure in High Court
03 Procedure in Lands and Titles Division
04 Procedure in District and other Courts
05 Service of Process
06 Pleadings and Parties (Reserved)
07 Trial and Judgment (Reserved)
08 Appellate Procedure
09 Attachment
10 Condemnation

11 Declaratory Relief

12 Government Tort Liability
13 Injunctions
14 Summary Proceedings to Recover Possession of Leased Realty and Certain Ancillary Relief
15 Orders and Execution
16 (Reserved)
17 Enforcement of Foreign Judgments
18 Garnishment
19 Uniform Foreign Money Judgments Recognition Act
20-49 (Reserved)
50 Remedies
51 Negligence

Defamation
Y-2K Compliance

Chapter 01

GENERAL PROVISIONS

Sections:

43.0101 Clerk to fix High Court costs and fees.

43.0102 Fees and costs of registrars of vital statistics and titles.

43.0103 Failure to pay fees or costs.

43.0110 Authority to administer oath.

43.0115 Transfer of cases-Venue.

43.0120 Limitation periods.

43.0121 Cause of action for fraud, mistake or trespass.

43.0122 Cause of action on open account.

43.0123 Limitation on executions.

43.0124 Death of party to be charged.

43.0125 Death of party having cause of action.

43.0126 Commencement of action by minors and insane persons.

43.0127 Period of nonresidence not included in limitation period.

43.0128 Revival of cause of action in contract.

43.0129 Use of barred counterclaim as defense.

43.0130 Effect of injunction.

43.0101 Clerk to fix High Court costs and fees.

(a) The clerk of the High Court of American Samoa shall, with the approval of the Chief Justice, fix all fees for services, filing fees and other court costs assessed by the judicial branch in connection with services rendered and not other-wise provided for in this code; provided, how-ever, that such fees shall be set in an amount which is reasonable, fair and just compensation for the service rendered, at least in part defrays the costs of such service, and does not exceed the actual costs of providing the service.

(b) The cost of a transcript of proceedings of any court hearing or trial shall be fixed at no more than the rate charged for transcripts in the United States district courts.

(c) The per day cost of any High Court hear-ing or trial shall not exceed $25 for a trial day of ordinary and usual length; an additional amount may be assessed for any time in excess thereof.

History: 1962, PL 7-36; 1966, PL 9-46

43.0102 Fees and costs of Registrars of Vital Statistics and Titles.

The Registrar of Vital Statistics and the Territorial Registrar shall fix all filing fees and costs, with the approval of the Governor, for services rendered the public through their respective offices; provided, however, that such fees shall be set in an amount which is reasonable, fair and just compensation for the service so rendered, at least in part defrays the costs of such service, and does not exceed the actual costs of providing the service.

History: 1962, PL 7-36. 1966, PL 9-46.

43.0103 Failure to pay fees or costs.

(a) Failure to pay court costs due the government pursuant to a decree, judgment, or court order shall constitute a contempt for which the body of the person in default may in the court's discretion be attached.

(b) No such attachment shall be ordered unless payment is more than 30 days overdue.

(c) Before ordering actual attachment of the body, the court may allow the delinquent such time as it may see fit within which to make payment.

(d) A person whose body has been attached, may be permitted to work out such costs by such labor as the Attorney General may assign him. The Attorney General shall make a return to the clerk of the High Court showing the number of days of labor performed, and the clerk of the High Court shall credit on the delinquent court costs $1 for each day of labor performed.

(e) The period of attachment for contempt under this section shall not exceed in days the number of dollars of delinquent court costs.

(f) During such period as labor may be performed pursuant to this section, the attached person shall be released from confinement.

(g) Payment by a person whose body has been attached shall entitle the person to release.

History: 1962, PL 7-36.

43.0110 Authority to administer oath.

(a) The Governor, Secretary of American Samoa, Attorney General, Chief Justice, Associate Justice, clerk of the High Court and such other persons as shall be appointed by the Secretary of American Samoa shall have authority to administer all oaths and take acknowledgments for any purpose, and shall have, ex officio, the powers of a notary public. In addition, the following officials shall have authority to administer oaths and take acknowledgments to be used within the limits of American Samoa, to the extent specified-:

(1) The associate judges of the High Court shall have authority to administer oaths and take acknowledgments in all cases within the jurisdiction of the High Court;

(2) The associate judges of the High Court and the clerks of the district courts shall have authority to administer oaths and take acknowledgments in all cases within the jurisdiction of the district courts;

(3) Members of the Legislature shall have the authority to administer oaths in accordance with the provisions of 2.1001.

(b) "Oath" as used in this section includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated.

History: 1962, PL 7-28; 1998 PL 25-35.

43.0115 Transfer of cases-Venue.

Any case brought in the High Court or in a district court may, in the interest of justice and for the convenience of the parties and witnesses, be transferred by order of the Chief Justice or of the Associate Justice to any court in which it might have been brought originally.

History: 1962, PL 7-36; 1966, PL 9-40.

Case Notes:
High Court is not empowered by this section to transfer a case to a United States district court. In the matter of Interocean Ships, Inc., C.A. No. 43-84 (4/21/86); Pacific Princess. 2 A.S.R. 2d 21 (1984).

43.0120 Limitation periods.

Actions may be brought within the following times after their causes accrue, and not after-ward, except where otherwise especially declared:

(1) actions brought to set aside a will, within 6 months from the time the will is filed in the clerk's office for probate and notice thereof is given;

(2) actions founded on injuries to the person or reputation, including injuries to relative rights, whether based on contract or tort, or for a statutory penalty, within 2 years;

(3) actions founded on unwritten contracts, or brought for injuries to property, within 3 years;

(4) actions to set aside a judgment or decree quieting title to real estate, within 5 years after the rendition of the judgment or decree;

(5) actions founded on written contracts, or a judgment of a court of record, within 10 years;

(6) actions brought for the recovery of real property, within 20 years;

(7) all actions for which no limitation period is provided, 3 years.

History: 1962, PL 7-36.

Case Notes:
Action based on release of groceries to consignee without obtaining payment is not action based on injuries to person or reputation. Micronesian-Hawaiian Trading Co. v. Young, ASR (1979).

Neither paragraph (2) or (7) is applicable to a wrongful death action; Subsection (d) of 43.5001 applies. Tauanuu v. Hartford Fire Ins. Co., ASR (1976).

Actions for recovery of real property must be brought within 20 years after cause of action accrues. RCAS 3.1101. Fau v. Wilson, 4 ASR 443 (1964).

Action to recover littoral rights taken by the government ninety years ago is barred by the doctrine of laches and by a statute which bars causes of action to recover real property if not brought within twenty years after they accrue. A.S.C.A. § 43.0120(6). Vaivao v. Craddick, 14 A.S.R.2d 108 (1990).

Persons who have been injured by private persons have two years after the cause of action accrues in which to file suit. A.S.C.A. § 43.0120(2). Randall v. American Samoa Gov't, 19 A.S.R.2d 111 (1991).

Where the parties could be ascertained from the face of a note and security agreement executed by appellants in which terms, provisions, and conditions were fully set forth in writing, and the lender did not sign the agreement, but accepted or adopted it and relied on its validity as a promissory note, such note and security agreement was a written contract subject to a ten-year statute of limitations. A.S.C.A. § 43.0120. Pene v. Bank of Hawaii, 17 A.S.R.2d 168 (1990).

The statutes of limitations for filing suit are two years for actions on personal injury, three years for actions on unwritten contracts, ten years for actions on written contracts, and twenty years for actions to recover real property. A.S.C.A. § 43.0120. Jennings v. Jennings, 19 A.S.R.2d 34 (1991).

Limitation of actions and adverse possession, while facts giving rise to them are usually intertwined, are separate laws and may sometimes depend on different facts. A.S.C.A. §§ 37.0120, 43.0120(6). Roberts v. Sesepasara, 8 A.S.R.2d 43 (1988).

Purchaser's possession of land as lessee prior to her purchase might count toward thirty year period for adverse possession, but did not prevent the purchase from giving rise to a new cause of action for the purpose of twenty year statute of limitations. A.S.C.A. §§ 37.0120, 43.0120(6). Roberts v. Sesepasara, 8 A.S.R.2d 43 (1988).
If claimant of land was unaware of the identity of occupants of the land at the time suit was filed, naming the occupants as "Doe defendants" was sufficient to toll the statute of limitations. A.S.C.A. § 43.0120(6). Roberts v. Sesepasara, 8 A.S.R.2d 43 (1988).

A two-year statute of limitations applies to actions founded on personal injuries. A.S.C.A. § 43.0120(2). Afatasi v. Ho Ching, 17 A.S.R.2d 173 (1990).

Actions founded on personal injuries, whether based on contract or tort, must be brought within two years. A.S.C.A. § 43.0120(2). Patau v. Rosendahl Corp., 19 A.S.R.2d 80 (1992).

If a case has not been brought within the time limits of A.S.C.A. § 43.0120, summary judgment may be properly entered against plaintiff(s). Patau v. Rosendahl, 20 A.S.R.2d 77 (1992).

43.0121 Cause of action for fraud, mistake or trespass.

In actions for relief on the ground of fraud or mistake, and those for trespass to property, the cause of action shall not be deemed to have accrued until the fraud, mistake or trespass complained of shall have been discovered by the party aggrieved.

History: 1962, PL 7-36.

43.0122 Cause of action on open account.

When there is a continuous, open, concurrent account, the cause of action shall be deemed to have accrued on the date of the last item therein, as proved at trial.

History: 1962, PL 7-36.

43.0123 Limitation on executions.

An execution may issue at any time before judgment is barred by the statute of limitations.

History: 1962, PL 7-36.

43.0124 Death of party to be charged.

In all cases where, due to death of the party to be charged, the bringing of an action against his estate has been delayed beyond the period provided for by statute, the time within which action may be brought against his estate shall be extended for 6 months from the date of the death of the decedent.

History: 1962, PL 7-36.

Case Notes:
Specific provisions which toll a statute of limitations are provided by statute. A.S.C.A §§ 43.0124-43.0127. Patau v. Rosendahl Corp., 19 A.S.R.2d 80 (1992).

43.0125 Death of party having cause of action.

If a person having a cause of action dies within 1 year next previous to the expiration of a limitation, such limitation does not apply until 1 year after such death.

History: 1962, PL 7-36.

Case Notes:
Specific provisions which toll a statute of limitations are provided by statute. A.S.C.A §§ 43.0124-43.0127. Patau v. Rosendahl Corp., 19 A.S.R.2d 80 (1992).

43.0126 Commencement of action by minors and insane persons.

Minors and insane persons shall have 1 year from after the termination of such disability within which to commence any action regardless of any otherwise applicable limitation period.

History: 1962, PL 7-36.

Case Notes:
Where statute provides that minor has one year after termination of minority to commence any action regardless of any otherwise applicable limitation period, an action brought within this one year period is not barred by two year statute of limitations on tort actions against the government. A.S.C.A. §§ 43.0126, 43.1204. Lutu v. American Samoa Government, 7 A.S.R.2d 61 (1988).

Under statute providing that minors shall have one year after the termination of their disability to commence any action, a claim by a minor against the government is not barred so long as action is begun within one year after attainment of majority or appointment of a guardian ad litem, notwithstanding the two-year statute of limitations otherwise applicable to actions against the government. A.S.C.A. §§ 43.0126, 43.1204. Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88 (1988).

"Minors and insane persons" have one year from the termination of such disability within which to commence an action, regardless of any otherwise-applicable statute of limitations. A.S.C.A. § 43.0126. Afatasi v. Ho Ching, 17 A.S.R.2d 173 (1990).

Specific provisions which toll a statute of limitations are provided by statute. A.S.C.A §§ 43.0124-43.0127. Patau v. Rosendahl Corp., 19 A.S.R.2d 80 (1992).

43.0127 Period of nonresidence not included in limitation period.

The time during which a defendant is a nonresident of American Samoa shall not be included in the computation of any period of limitation.

History: 1962, PL 7-36.

Case Notes:
Specific provisions which toll a statute of limitations are provided by statute. A.S.C.A §§ 43.0124-43.0127. Patau v. Rosendahl Corp., 19 A.S.R.2d 80 (1992).

43.0128 Revival of cause of action in contract.

Causes of action founded on contract are revived by an admission in writing, signed by the party to be charged, that the debt is unpaid, or by a like new promise to pay the same.

History: 1962, PL 7-36.

43.0129 Use of barred counterclaim as defense.

A counterclaim may be pleaded as a defense to any cause of action, notwithstanding it is barred by a statute of limitation, if it was the property of the party pleading it at the time it became barred, and was not barred at the time the claim sued on originated; but no judgment thereon, except for costs, can be rendered in favor of the party so pleading it.

History: 1962, PL 7-36.

43.0130 Effect of injunction.

When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of such injunction or prohibition shall not be part of the time limited for the commencement of the action except as otherwise provided by law.

History: 1962, PL 7-36.

Chapter 02

PROCEDURE IN HIGH COURT

Sections:

43.0201 Civil procedure-Deficiencies in pleading.

43.0202 Adjournment to sit elsewhere.

43.0201 Civil procedure-Deficiencies in pleading.

(a) In the High Court, the civil practice shall conform, as closely as practicable, to the practice provided for in the Federal Rules of Civil Procedure, Title 28, U.S.C.

(b) No objection may be made to formal deficiencies in pleading.

History: 1962, PL 7-36, 1969, PL 11-54.

Case Notes:

Federal Rules of Civil Procedure referenced herein include supplemental rules for certain admiralty and maritime claims. Star-Kist Samoa, Inc., v. Poong No.5, ASR (1979).

Insofar as the "Federal Rules of Civil Procedure, supplemental Rules for Certain Admiralty and Maritime Claims" concern actions in rem, they are inapplicable in proceedings in the courts of American Samoa, for such courts do not have in rem admiralty or maritime jurisdiction Vessel Fijian Swift v. Trial Division, 4 ASR 983 (1975).

A petition for review of an Immigration Board's decision need not be dismissed or be refiled to correct the names of the appellees in the caption when the petition incorrectly included the American Samoa Government, the Attorney General, and the Chief Immigration Officer as appellees. A.S.C.A. §§ 41.0209, 43.0201(b); H.C.R. 3. Farapo v. American Samoa Government, 23 A.S.R.2d 51 (1992).
The High Court looks to the Federal Rules of Civil Procedure for guidance and must conform to them as closely as practicable. A.S.C.A. § 43.0201(a). Crispin v. American Samoa Gov't, 21 A.S.R.2d 60 (1992).

43.0202 Adjournment to sit elsewhere.

In any case where the interest of justice or the convenience of parties, witnesses or the court re-quires, the Chief Justice or the Associate Justice may order that a session of any division of the High Court adjourn from the courthouse to sit at any appropriate place in American Samoa.

History: 1969, PL 11-54.

Chapter 03

PROCEDURE IN LANDS AND TITLES DIVISION

Sections:

43.0301 Presence of judges and assessors required for exercise of jurisdiction.

43.0302 Certificate of irreconcilable dispute.

43.0303 Orders prior to proceedings-Effect-Modification.

43.0304 Interlocutory orders.

43.0305 Status of orders.

43.0301 Presence of judges and assessors required for exercise of jurisdiction.

Except as otherwise specifically provided by law, the Land and Titles Division shall not exercise any jurisdiction conferred upon it unless there is present the presiding judge, 2 associate judges and 2 assessors. Where, by reason of the absence of the minimum number of persons referred to above, it is necessary to adjourn the sitting of the Land and Titles Division or the hearing of any case, the presiding judge, or in his absence, the clerk of the High Court may adjourn or further adjourn such sitting or the hearing of such case to such future day as the presiding judge or the clerk shall think fit.

History: 1969, PL 11-54.

43.0302 Certificate of irreconcilable dispute.

(a) Before any action relating to controversies over communal land or matai titles may be commenced in the Land and Titles Division, each party shall file with his complaint a certificate signed and attested by the Secretary of Samoan Affairs or his deputy, in which the Secretary or his deputy affirms and states:

(1) that on at least 2 occasions, the parties have appeared personally before him and 2 persons designated by him, without an attorney or counsel, and that an attempt was made to re-solve the controversy;

(2) that all parties to the controversy received at least 20 days notice for each of the 2 required appearances;

(3) the date and hour of the beginning and conclusion of each appearance;

(4) the findings and conclusions of the Secretary or his deputy and the 2 designees with respect to the controversy heard before them, including a statement of the reason why the controversy could not be resolved.

(b) The certification mentioned in subsection (a) may not be required prior to the issuance of a temporary restraining order issued by the Chief Justice or an Associate Justice to prevent the occurring of irreparable damage.

History: 1972, PL 12-59 § l; and 1973, PL 13-39.

Amendments: 1973 Designated original section subsection (a) and added subsection (b).

Case Notes:
No certificate of irreconcilable dispute filed; letter, while deficient in form, constitutes sufficient substance. Maria v. Tuli, ASR (1978).

Claim lodged in Territorial Registrar's Office at time of trial could not be heard by court; no certificate of irreconcilable conflict. Fanene v. Talio, ASR (1977).

To permit a temporary restraining order to be effective for an extended period without benefit of a hearing deprives a per-son of his liberty and property without due process of law. Such order is not effective soon after it is issued if there is no hearing on issue of irreparable damage occurring if the order is not issued. Faalafu v. Sala, ASR (1977).

The requirement that controversies be presented to the office of Samoan Affairs prior to the filing of a claim for relief with the High Court, is procedural and not jurisdictional. Tavai P. Kaleopa v. Nia-Marie & Company, Inc., ASR (1980).

When petitioner in land dispute has failed to seek relief from the Department of Samoan Affairs as required by statute prior to seeking judicial remedy, but respondent has answered and appeared before High Court, court would observe considerations of equity and convenience by staying the action pending compliance with the administrative relief requirements rather than dismissing the action altogether. A.S.C.A. §§ 3.0242, 43.0302(a). Moeisogi v. Faleafine, 5 A.S.R.2d 131 (1987).

Statutory requirement that parties submit a land dispute to the Office of Samoan Affairs before applying to the court for relief applies only to communal lands, and therefore did not deprive the court of jurisdiction over a dispute concerning individually owned lands. A.S.C.A. § 43.0302. Sese v. Leota, 9 A.S.R.2d 136 (1988).

Jurisdictional requirement that plaintiff must "file with his complaint a certificate" from office of territorial official, certifying that the parties have met twice and that the meetings did not result in a resolution of the dispute, was met where such a certificate was filed, notwithstanding evidence that an earlier letter by the same official tended to negative the existence of an irreconcilable dispute. A.S.C.A. § 43.0302. Leota v. Sese, 12 A.S.R.2d 18 (1988).

Letter from territorial official charged with mediating land disputes, stating the outline of a proposal by one of the parties but not even hinting that the other parties had ever agreed to the proposal, did not negate the existence of an irreconcilable dispute among the parties. A.S.C.A. § 43.0302. Leota v. Sese, 12 A.S.R.2d 18 (1988).

Statute requiring attempted resolution of "controversies over matai titles" before Secretary of Samoan Affairs before judicial action may be commenced applies not only to cases of matai appointment but also to petitions for matai removal. A.S.C.A. § 43.0302(a). Members of the Taufi Family v. Taufi (Mem.), 12 A.S.R.2d 6 (1989).

Where certificate of irreconcilable dispute from Secretary of Samoan Affairs was issued upon misinformation given by a party to the dispute, proceedings in Land & Titles Division would be stayed pending certification by the Secretary of compliance with statutory procedures for attempted resolution. A.S.C.A § 43.0302. In re Matai Title Mulitauaopele (Mem.), 12 A.S.R.2d 8 (1989).

A party's contention that a piece of land is communal brings into play the requirements of A.S.C.A. § 43.0302. Ava v. Logoa'i, 20 A.S.R.2d 51 (1992).

43.0303 Orders prior to proceedings-Effect-Modification.

(a) If the Chief Justice or Associate Justice is satisfied that a dispute which is within the jurisdiction of the Land and Titles Division has arisen between Samoans and is likely to be the subject matter of proceedings under this chapter, he may, at any time before the commencement of proceedings, make such order as to him may seem just to restrain any Samoans from:

(1) remaining in possession of or entering upon any Samoan land;

(2) holding or using any Samoan name or title;

(3) exercising any right or doing any act, matter or thing concerning or affecting any Samoan land or any Samoan name or title.

(b) Any order under subsection (a) may be made ex parte or otherwise and shall remain in full force and effect until the final judgment of the Land and Titles Division. The presiding judge may, at any time after the commencement of proceedings and upon the application of any party affected by such order, modify, vary or rescind the same.

History: 1969, PL 11-54; 1970, PL 11-119.

Case Notes:
Temporary restraining order enjoining defendants from clearing, etc., is proper under subsection (a). Tuilefano v. Beaver. ASR (1978).

Holding on Sofa'i in disregard of court order restraining defendant from participation in Sofa'i constitutes civil con-tempt. So'oso'oali'i Muasau Sotoa v. Leifitele Sinapati Sotoa, MT No. 003-86 (5/13/86).

Court may enjoin person wrongfully holding himself out as holder of matai title. Togiola v. Tafesilafa'i, 4 ASR2d 54 (1987).

Court may enjoin a person from holding himself out as the holder of a matai title that has been lawfully registered in the name of another person. A.S.C.A. § 43.0303. Togiola v. Tafesilafa'i, 4 A.S.R.2d 54 (1987).

In apparent recognition of the unusual nature of interests often being asserted in Samoan land disputes, the territorial legislature has provided that in such disputes a justice may make such preliminary orders as to him seem just to restrain any Samoan from exercising any right or doing any act, matter, or thing affecting or concerning any Samoan land pending the outcome of the litigation, without requiring that any specific irreparable harm be shown. A.S.C.A. § 43.0303. Leaana v. Laban (Mem.), 12 A.S.R.2d 93 (1989).

43.0304 Interlocutory orders.

In any proceeding, a justice may, pending final determination of the matter by the Land and Titles Division, make such interim orders as he thinks appropriate. The associate judges sitting in matai title disputes shall refer all requests for ex parte or interim orders to the Chief Justice or Associate Justice for appropriate action, unless the associate judges are in unanimous agreement thereon from entry of judgment and a trial de novo shall be held thereon.

History: 1969, PL 11-54. 1970, PL 11-119.

Case Notes:
Pursuant to power to make "such order as to him may seem just" in any land case, Chief Justice or Associate Justice of High Court need not stop at denying plaintiff's meritless claim for relief, but may issue preliminary injunction restraining plaintiff from interference with rights of defendant as delineated in earlier judgment. A.S.C.A. § 43.0304. Sialega v. Taito, 5 A.S.R.2d 99 (1987).

43.0305 Status of orders.

Any order made under 43.0303 or 43.0304 shall be deemed to be an order of the Land and Titles Division and shall be enforceable accordingly.

History: 1969, PL 11-54.

Chapter 04

PROCEDURE IN DISTRICT AND OTHER COURTS

Sections:

43.0420 Rules.

43.0421 Appeals.

43.0420 Rules.

The small claims department sessions shall be held pursuant to rules promulgated by the Chief Justice.

History: 1967, PL 10-17, 1968, PL 10-62; 1969, PL 11-54; 1970, PL 11-116; 1970, PL 11-119.

43.0421 Appeals.

(a) An appeal may be taken to the Trial Division by either party adversely affected by a decision.

(b) Any appeal shall be filed in writing with the clerk of the High Court within 5 days from entry of judgment and a trial de novo shall be held thereon.

History: 1967, PL 10-17; 1968, PL 10-62, 1969, PL 11-54; 1970, PL 11-116; 1970, PL 11-119.

Chapter 05

SERVICE OF PROCESS

Sections:

43.0501 By publication-Permitted when.

43.0502 How served-Notice.

43.0503 Proof of service.

43.0504 By means other than publication.

43 .0501 By publication-Permitted when.

When an affidavit is filed that personal service cannot be made upon the defendant within American Samoa, service may be made by publication in any of the following cases:

(1) actions involving real property in American Samoa or any right, title, interest or estate therein, including, without limiting the fore-going, actions brought for:

(A) the sale, recovery or partition of real property;

(B) specific performance of a contract of sale covering real property;

(D) quieting of title to real property;

(2) an action brought against a nonresident of American Samoa or a foreign corporation, having in American Samoa property or debts owing to such defendant and sought to be appropriated in any way;

(3) all action where the defendant, being a resident of American Samoa, has departed there-from with intent to delay or defraud his creditors, or to avoid the service of a notice, or keeps himself concealed in American Samoa with like intent;

(4) where the action is for a divorce or annulment, or for a change or modification of a decree of divorce or annulment, if the defendant is a nonresident of American Samoa or his residence is unknown.

History: 1962, PL 7-36.

Case Notes:
When personal service cannot be made upon a respondent in a divorce action within American Samoa, a petitioner may apply for an order authorizing issuance of a notice for service by publication, supported by an affidavit or another acceptable, verified statement of nonresidency or unknown residency. A.S.C.A. §§ 43.0501-43.0504; T.C.R.C.P. 4(e). Pula v. Pula, 24 A.S.R.2d 151 (1993).

When a petitioner files an affidavit that personal service cannot be made upon a respondent in a divorce action within American Samoa, due to nonresidency or unknown residency, service of process may be made by publication or registered mailing. A.S.C.A. §§ 43.0501-43.0504; T.C.R.C.P. 4(e), 12(a). Pula v. Pula, 24 A.S.R.2d 93 (1993).

43.0502 How served-Notice.

(a) After the complaint or petition has been filed with the court in which the matter is pending, notice shall be published once each month for 2 consecutive months in some newspaper or publication of general circulation, posted in the front of the court house in the village of Fagatogo, for the same period, and mailed by registered United States mail to the defendant at his last known address. If at any time there is no newspaper or other publication of general circulation in American Samoa available, and such fact is so found by the court, notice by posting and mails shall be sufficient.

(b) The notice shall contain and inform the defendant of the following:

(1) the name of the plaintiff:

(2) the name of the court wherein the action is brought and that the petition is on file in the court:

(3) a statement in general terms of the cause or causes of action, and, if it is for money, the amount, and that unless the defendant appears and defends within 2 months and 10 days from the date of the first publication, which date shall be published as a part of the notice, a default will be entered against him and judgment or decree rendered thereon.

History: 1962, PL 7-36.

Case Notes:
Notice by publication must be calculated to afford due process and may require publication in multiple languages and in newspapers in jurisdiction outside American Samoa. Memorandum of the Justices, 2 ASR2d 33 (1986).

When personal service cannot be made upon a respondent in a divorce action within American Samoa, a petitioner may apply for an order authorizing issuance of a notice for service by publication, supported by an affidavit or another acceptable, verified statement of nonresidency or unknown residency. A.S.C.A. §§ 43.0501-43.0504; T.C.R.C.P. 4(e). Pula v. Pula, 24 A.S.R.2d 151 (1993).

Requirements of statute providing for notice by publication to defendant in legal proceeding must be complied with before action against defendant can proceed to trial. A.S.C.A. § 43.0502. In re A Minor Child, 7 A.S.R.2d 24 (1988).

To be genuinely calculated to give notice, service by publication on a person believed to reside in Western Samoa should ordinarily be in a Western Samoa newspaper in the Samoan language, and notice in Samoan should also be mailed to the party at his last known address. A.S.C.A. § 43.0502. In re A Minor Child, 7 A.S.R.2d 125 (1988).

Territorial statute allowing service on absent defendants by publication requires three forms of notice: publication in a newspaper, posting in front of the court house, and mailing by registered mail at his last known address. A.S.C.A. § 43.0502(a). In re Three Minor Children, 10 A.S.R.2d 57 (1989).

43.0503 Proof of service.

Proof of service by publication shall be by affidavit of the publisher to which affidavit shall be attached the notice clipped from a copy of the newspaper or publication in which the publication was made. If the publication was made by mailing, affidavit of the person mailing the notice, with a copy of the notice mailed, shall be made. In either event, affidavit of posting shall also be made by the person posting such notice in the front of the Court House. The affidavits required by this section must be made before a default can be taken.

History: 1962, PL 7-36.

43.0504 By means other than publication.

Publication is not necessary if a copy of the order has been served upon the defendant in per-son or by registered mail at least [2 months and 10 days] before trial, and in case of service by registered mail an official return receipt signed by the defendant is attached to the affidavit of service.

History: 1962, PL 7-36, and 1984, PL 18-28 § 1.

Amendments: 1984 Provides for service by means other than publication.

Case Notes:
"Actual personal service" is not defined in code. Resorting to Rule 4(d)(l), Federal Rules of Civil Procedure, find no authorized agent is involved. Nor does rule when read with section authorize service by mail or any other method. Pelesasa v. Te'o, ASR (1978).

Chapter 06

PLEADINGS AND PARTIES (RESERVED)
Chapter 07

TRIAL AND JUDGMENT (RESERVED)

Chapter 08

APPELLATE PROCEDURE

Sections:

43.0801 Powers.

43.0802 Procedure applicable to appeal.

43.0803 Stay of execution.

43.0804 Decision on appeal final until otherwise provided by legislature.

43.0801 Powers.

(a) The Appellate Division of the High Court shall have power on appeal or review to affirm, modify, set aside, or reverse the judgment or order appealed from or reviewed and to remand the case with such direction for a new trial or for the entry of judgment as may be just.

(b) The findings of fact of the trial, probate and Land and Titles Divisions of the High Court may not be set aside by the Appellate Division unless clearly erroneous.

History: 1962, PL 7-36; 1967, PL 10-17; 1969, PL 11-54.

Case Notes:
Although no clearly erroneous findings of fact, in the future, a series of legal conclusions, unsupported by meaningful discussion, may form basis of a reversal, in re "Fanene", ASR (1977).
Construes "clearly erroneous", Tuiagamoa v. Tomasi, ASR (1977).
Appellate Division is bound by findings of fact of Trial Court unless clearly erroneous. RCAS 3.0503. Willis v. Government, 4 ASR 926 (1965).

Appellate Division of the High Court will not set aside findings of fact of trial court unless clearly erroneous. RCAS 3.0503. Utu V. Aumoeualogo, 4 ASR 906 (1964).
Appellate court will not set aside findings of fact by Trial Division of he High Court unless clearly erroneous. RCAS 3.0503. Taufaasau v. Manuma, 4 ASR 947 (1967).
Disparity from place to place in amounts generally awarded for pain and suffering is accounted for by many factors, including variations in the value of money and in social attitudes toward pain, and that awards tend to be lower in American Samoa than in some other jurisdictions does not make such an award clearly erroneous. A.S.C.A. § 43.0801. Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146 (1988).

Appellate court has no authority to increase the amount of damages awarded by trial court unless the amount was clearly erroneous. A.S.C.A. § 43.0801. Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146 (1988).

Appellate division of territorial court reviews findings of fact by Land and Titles Division for clear error. A.S.C.A. § 43.0801(b). Tuileata v. Amituana'i, 8 A.S.R.2d 173 (1988).
There is no clear error requiring appellate division to reverse a decision denying registration of land where (1) prior cases relied on by the appellant to show his presence in the area concerned another tract of land and (2) witnesses testified that appellant neither had houses or plantations in the area nor, owing to his long absence from the territory, had knowledge of the true extent of his family lands. A.S.C.A. § 43.0801(b). Tuileata v. Amituana'i, 8 A.S.R.2d 173 (1988).

Where each party has presented evidence to the trial court which supports its own claim to land ownership, the trial court's findings will not be disturbed on appeal unless clearly erroneous. A.S.C.A. § 43.0801(b). Suapilimai v. Faleafine, 9 A.S.R.2d 16 (1988).

Trial court findings of fact for which there is substantial evidence in the record are not clearly erroneous, and will not be disturbed on appeal, even though there is also substantial evidence in the record that would have supported a contrary finding by the trial court. A.S.C.A. § 43.0801(b). Suapilimai v. Faleafine, 9 A.S.R.2d 16 (1988).

Appellant who seeks to overturn the trial court's findings of fact on appeal bears the heavy burden of showing that these findings were "clearly erroneous" in light of the record. A.S.C.A. § 43.0801(b). Toleafoa v. Tiapula, 12 A.S.R.2d 56 (1989).

Where trial court finding that appellant had relinquished possession of house by many years of absence was supported by testimony that appellant lived in another village and rarely visited the village in which the disputed house was located, the finding was not clearly erroneous and appellate court would not disturb it. A.S.C.A. § 43.0801(b). Toleafoa v. Tiapula, 12 A.S.R.2d 56 (1989).

It is not within the province of the appellate court to re-weigh the evidence and interfere with a decision based on the lower court's choice of one version of the facts over another; findings of facts may not be set aside by the appellate court unless clearly erroneous. A.S.C.A. § 43.0801(b). Utuutuvanu v. Mataituli, 12 A.S.R.2d 88 (1989).

Trial court's finding of facts may not be set aside on appeal unless clearly erroneous. A.S.C.A. § 43.0801(b). Moea'i v. Alai'a, 12 A.S.R.2d 91 (1989).

The trial division's factual findings may not be set aside by the appellate division unless clearly erroneous. A.S.C.A. § 43.0801(b); T.C.R.C.P. 52(a). Saufo'i v. American Samoa Gov't, 19 A.S.R.2d 54 (1991).

The "clearly erroneous" standard is used by an appellate court to test a lower court's findings of negligence, as well as related findings such as "proximate cause." A.S.C.A. § 43.0801(b); T.C.R.C.P. 52(a). Saufo'i v. American Samoa Gov't, 19 A.S.R.2d 54 (1991).
In resolving issues of witnesses' credibility, motive, and character, the Appellate Division is limited to the trial court's transcripts and will presume their determinations to be correct, unless clearly erroneous. A.S.C.A. § 43.0801(b). Rocha v. Rocha, 20 A.S.R.2d 63 (1992).

On appeal, a clearly erroneous standard applied to questions of fact, but questions of law are reviewed de novo. A.S.C.A. § 43.0801(b). Anderson v. Vaivao, 21 A.S.R.2d 95 (1992).

43.0802 Procedure applicable to appeal.

The following procedure shall apply to appeals taken to the Appellate Division of the High Court:

(a) Before filing a notice of appeal, a motion for a new trial shall be filed within 10 days after the announcement of the judgment or sentence.

(b) A notice of appeal shall be filed within 10 days after the denial of a motion for a new trial.

(c) The appellant shall cause the record on appeal to be filed with the appellate division and the appeal to be docketed there within 30 days from the date the notice or appeal is filed.

History: 1962, PL 7-36; 1966, PL 10-42; 1967, PL 10-17; 1968, PL 10-62.

Case Notes:

Reporter's failure to complete transcript not grounds for dis-missal for failure to comply. Ripley v. Kelemete. ASR (1978).

Time is computed as provided in Rule 6(a), Federal Rules of Civil Procedure. Ailua v. Maga Family, ASR (1978).

Time for filing a notice of appeal is jurisdictional and court may not extend under Rule 26(c), Federal Rules of Appellate Procedure, which allows 3 days for mailing or under Federal Rules of Civil Procedure provision on excusable neglect. Taufua v. Steffany, ASR (1977).

"Announcement" means "entry of judgment" which means docketing of an order or decision by the Clerk of the Court. Motion for new trial, therefor, not timely, and action taken thereon is nullify. Fai'ivae v. Tuse, ASR (1977).

Motion for new trial must be filed within 10 days after judgement but may be served on parties after the tenth day. Manuma v. Bartley, 3 ASR2d 21(1986).

Period for filing motion for new trial commences with formal announcement of judgement. Subsequent events such as issuance of written opinion, correction of error or receipt by counsel of notice of judgement, do not extend period for filing.

Failure of clerk to file written entry of formally announced judgement does not prevent period from running. Judicial Memorandum, 4 ASR2d 172 (1987).

Territorial statute requiring motions for new trial to be "filed" within ten days of judgment would not be construed to require service on opposing parties within the ten day period. A.S.C.A. § 43.0802. Olotoa v. Bartley, 3 A.S.R.2d 21 (1986).

Motion for new trial is a statutory prerequisite to appeal, and no issue can be raised on appeal that was not raised in motion for new trial. A.S.C.A. § 43.0802. Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146 (1988).

Parties who did not file a motion for new trial or reconsideration within ten days of judgment gave up their right to appeal the decision. A.S.C.A. § 43.0802(a),(b). Gi v. Temu (Mem.), 12 A.S.R.2d 33 (1989).

The statutory deadline for filing motions for reconsideration or new trial is jurisdictional; if no such motion is filed within the requisite ten days, the Court no longer has the power to reconsider or amend its judgment and the losing party no longer has a right to appeal. A.S.C.A. § 43.0802(a) In re Matai Title Muagututi'a, 15 A.S.R.2d 1 (1990).

The requirement that before filing a notice of appeal, a motion for a new trial shall be filed within 10 days after the announcement of the judgment or sentence is jurisdictional. A.S.C.A. § 43.0802(a). Taulaga v. Patea, 17 A.S.R.2d 34 9 (1990).

If no timely motion for reconsideration or new trial conforming to the "particularity" requirement of T.C.R.C.P. 7(b)(1) is filed within the statutory ten-day deadline, then the Appellate Division lacks jurisdiction to entertain an appeal. A.S.C.A. § 43.0802(a). Taulaga v. Patea, 17 A.S.R.2d 34 (1990).

The requirement that a notice of appeal shall be filed within 10 days after the denial of a motion for a new trial is jurisdictional. A.S.C.A. § 43.0802(b). Taulaga v. Patea, 17 A.S.R.2d 34 (1990).

The requirement that a motion for a new trial be filed within ten days after the announcement of the judgment is a mandatory prerequisite to the exercise of jurisdiction by the Appellate Division. A.S.C.A. § 43.0802(a). In re Matai Title Mulitauaopele, 17 A.S.R.2d 75 (1990).

The ten-day time limit to file a motion for a new trial is mandatory and jurisdictional; errors of law not raised within ten days of judgment or sentence are waived, at least insofar as they concern the right to appeal. A.S.C.A. §§ 43.0802(a), 46.2402(a). American Samoa Government v. Falefatu, 17 A.S.R.2d 114 (1990).

The filing of a motion for new trial within ten days of the announcement of judgment is a mandatory prerequisite to appeal. A.S.C.A. § 43.0802(a). Lualemana v. Asifoa, 17 A.S.R.2d 151 (1990).

A party whose motion for a new trial has been denied, in whole or in part, has ten days from that date to file a notice of appeal. A.S.C.A. § 43.0802(b). Willis v. Fai'ivae, 17 A.S.R.2d 179 (1990).

The Appellate Division can hear an appeal only if a motion for new trial has been made within ten days of judgment, and only if a notice of appeal has been filed within ten days of the denial of a motion for new trial. A.S.C.A. § 43.0802. Taulaga v. Patea, 17 A.S.R.2d 206 (1990).

Where a motion for reconsideration has been filed after the statutory deadline, the Appellate Division has no jurisdiction to entertain an appeal regardless of any arguments, equitable or otherwise. A.S.C.A. § 43.0802. Lualemana v. Asifoa, 18 A.S.R.2d 49 (1991).

Although the statute does not provide a remedy for a situation in which, due to an error on the part of a Court employee or a theft from counsel's Court box a litigant does not receive notice of the judgment until after the ten-day deadline, the Court might, in extraordinary situations, entertain a T.C.R.C.P Rule 60(b) motion and vacate the previous order dismissing the motion for reconsideration for lack of jurisdiction. A.S.C.A. § 43.0802. T.C.R.C.P. Rule 60(b). Lualemana v. Asifoa, 18 A.S.R.2d 49 (1991).

The requirement of filing a motion for a new trial or reconsideration of judgment prior to an appeal is jurisdictional. A.S.C.A. § 43.0802(a). Rocha v. Rocha, 20 A.S.R.2d 63 (1992).

In order for the appellate court to have jurisdiction over an appeal, (1) a motion for new trial or reconsideration must be filed within ten days after the announcement of the judgment or sentence, and (2) the notice of appeal must be filed within ten days after the denial of that timely motion. A.S.C.A. § 43.0802. Toluao v. Fuimaono, 21 A.S.R.2d 12 (1992).

Attorney who was served with the court's opinion and judgment had a duty to inform his clients of the result in time for them to decide whether they wished to file a motion for new trial or reconsideration. A.S.C.A. § 43.0802(a),(b). Gi v. Temu (Mem.), 12 A.S.R.2d 33 (1989).

Statute imposing ten day time limit on motions for new trial is jurisdictional and leaves court no discretion to extend or disregard the time limit. A.S.C.A. § 43.0802(a). Satele v. Uiagalelei, 8 A.S.R.2d 97 (1988).

Although deadlines for filing motions for new trial and appeal are set by the legislature and court is not free to overlook or extend them, a party may file a motion for relief from judgment after the statutory deadline for filing a motion for new trial. A.S.C.A. § 43.0802(a),(b); T.C.R.C.P. Rule 60(b). Gi v. Temu (Mem.), 12 A.S.R.2d 33 (1989).

To prevail on a motion for relief from judgment, a party must show not only that the judgment was wrong but also that he has some compelling justification for not having called the mistake to the court's attention within the ten days provided for filing a motion for new trial. A.S.C.A. § 43.0802(a),(b); T.C.R.C.P. Rule 60(b). Gi v. Temu (Mem.), 12 A.S.R.2d 33 (1989).

Depending on the circumstances, parties' receipt of notice of judgment from their attorney after expiration of the statutory time limit for filing a motion for reconsideration or new trial might support a motion for relief from the judgment. A.S.C.A. § 43.0802(a),(b); T.C.R.C.P. Rule 60(b). Gi v. Temu (Mem.), 12 A.S.R.2d 33 (1989).

A failure to respond to the court's notice of dismissal and to move within the ten days required by statute for a reconsideration of its order of dismissal did not constitute "excusable neglect" under Rule 60(b). A.S.C.A. § 43.0802(a); T.C.R.C.P. 60(b)(1). Jennings v. Jennings, 19 A.S.R.2d 34 (1991).

Statute requiring mediation of disputes over communal land did not apply to dispute over land which trial court concluded, consistently with the record before it, to be individually owned. A.S.C.A. § 43.0802. Leota v. Sese, 12 A.S.R.2d 18 (1989).

The requirement of filing a motion for a new trial or reconsideration of judgment prior to an appeal is jurisdictional. A.S.C.A. § 43.0802(a). Rocha v. Rocha, 20 A.S.R.2d 63 (1992).

Statutory period for filing a motion for a new trial commences with the announcement of judgment. A.S.C.A. § 43.0802. Judicial Memorandum, 4 A.S.R.2d 172 (1987).

The Clerk of Court will file a written entry of any judgment announced from the bench; the failure of the Clerk to do so, however, does not prevent the statutory period for filing motions for new trial from commencing with the announcement of judgment by the court. A.S.C.A. § 43.0802. Judicial Memorandum, 4 A.S.R.2d 172 (1987).

The formal style or caption of a motion for a new trial is not essential to fulfill the statutory requirement; nor must the motion specifically request a new trial rather than some lesser or different form of relief, as long as the asserted errors are susceptible of such relief. A.S.C.A. §§ 43.0802(a), 46.2402(a). American Samoa Government v. Falefatu, 17 A.S.R.2d 114 (1990).

43.0803 Stay of execution.

Pending the hearing and determination of an appeal, execution of the final judgment or order of the High Court shall not be stayed unless the Appellate, Trial, or Land and Titles Division, or Chief Justice, orders a stay for cause shown and upon such terms as it or he may fix.

History: 1962, PL 7-36. 1967, PL 10-17, 1968, PL 10-62.

Case Notes:
Does not require the court to impose a supersedes bond upon granting a stay of enforcement, it is within the court's discretion. Korea Marine Industry Development v. American International Underwriters, et al., ASR (1977).

A court should not automatically or casually grant a stay of judgment pending appeal; the court's discretion to grant a stay should be exercised only if cause is shown. A.S.C.A. § 43.0803; T.C.R.C.P. 62(a), (c); A.C.R. 8. Asifoa v. Lualemana, 17 A.S.R.2d 10 (1990).

Execution of a final judgment of the High Court will not be stayed pending appeal unless the appellate, trial, Land and Titles Division, or Chief Justice orders a stay for cause shown upon such terms as it or he may fix. A.S.C.A. § 43.0803. Asifoa v. Lualemana, 17 A.S.R.2d 100 (1990).

Similar to a petition for a preliminary injunction, the decision to grant or deny a motion for a stay of an injunction pending appeal depends partly on the "balance of equities" and partly on the likelihood of appeal's success. A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8. Lutali v. Foster, 24 A.S.R.2d 81 (1993).

Regarding a motion to stay pending appeal, the moving party bears the burden of showing "cause" as to why an injunction should be stayed and must show that he is likely to prevail on the appeal's merits. A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8. Lutali v. Foster, 24 A.S.R.2d 81 (1993).

Corporate directors claiming economic loss are not entitled to a stay of an injunction pending appeal when they lack standing because they are not parties to the lawsuit against the corporation and when their individual economic interests are not coincidental with or necessarily those of the corporation; in any event, prospective monetary loss as a result of an injunction is insufficient to suspend an injunction. A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8. Lutali v. Foster, p. 81.

43.0804 Decision on appeal final until otherwise provided by legislature,

Unless and until the Legislature of American Samoa provides for an appeal to a court created by an act of the Legislature, the decisions of the Appellate Division of the High Court shall be final. When and if the Legislature of American Samoa provides for an appeal from any decision of the courts of American Samoa to a court created by an act of the Legislature, any right of appeal granted from such decisions to the appellate division of the High Court and right or re-view by the Secretary of the Interior shall cease.

History: 1962, PL 7-36, 1968, PL 10-46.

Chapter 09

ATTACHMENT

Sections:

43.0901 Writ of attachment.

43.0902 Affidavit.

43.0903 Plaintiffs bond.

43.0904 Motion for additional security.

43.0905 Action on bond.

43.0906 Amount of levy.

43.0907 Manner of execution.

43.0908 Indemnity for marshal.

43.0909 Examination of defendant where sufficient property cannot be found.

43.0910 Sale of perishable property.

43.0911 Return by marshal.

43.0912 Discharge of writ upon termination of action.

43.0913 Discharge of writ upon bond by defendant.

43.0914 Discharge of improperly issued writ.

43.0915 Filing discharge order.

43.0916 Payment of expenses where writ discharged.

43.0917 Execution.

43.0918 Priority among attachments.

43.0919 Collection of balance due-Return of surplus.

43.0920 Appointment of receiver.

Reviser's Comment: The law dealing with alienation of land contained in 43.0907 and 43.0917 of the ASCA as recodified by the legislative reference bureau had been questioned as to whether the requirements of Art. I, § 3 and Art. II. § 9, American Samoa Constitution, had been fulfilled. Since the records were not available to answer the question, the Legislature passed PL 16-88 and PL 17-31 to ensure that the law dealing with alienation of land compiles with the Constitution.

43.0901 Writ of attachment.

(a) The plaintiff in any permitted action upon a contract, express or implied, may, at the commencement of the action, or at any time afterward, and before judgment, have such property of the defendant or of any one or more of several defendants as is not exempt from execution, attached as security for the satisfaction of such judgment as he may recover.

(b) No writ of attachment may be issued against the government or any instrumentality thereof, the Development Bank of American Samoa, or the United States.

(d) The writ of attachment shall be issued by the clerk with the approval of the court and directed to the marshal, and shall require him to attach and safely keep so much of the property of the defendant as will be sufficient to satisfy the demand of the plaintiff, with costs and expenses.

History: 1962, PL 7-36; 1969, PL 11-54.

Research Guide: For provisions on exemption, from sale to sat-isfy judgments, of real property of Samoans, see 43.0909.

Case Notes:
Not relevant to the arrest of vessels for purpose of obtaining in rem jurisdiction. Star-Kist Samoa, Inc., v. Poong No. 5, ASR (1979).

The High Court has in personam jurisdiction over admiralty and maritime causes of action, even though it does not have in rem admiralty and maritime jurisdiction, and in the enforcement of such personal liability, a vessel or other goods or chattels, or credits, may be seized, attached and levied upon; and the Federal Rules of Civil Procedure, Supplemental Rules for Certain Admiralty and Maritime Claims, are on their face applicable in such in personam cases, insofar as they are consistent with the court's statutory jurisdiction. Vessel Fijian Swift v. Trial Division, 4 ASR 983 (1975).

43.0902 Affidavit.

Before any writ of attachment shall issue, the plaintiff, or someone in his behalf, shall make and file with the clerk an affidavit showing that the defendant is indebted to the plaintiff, specifying the amount of such indebtedness over and above all just due credits and offsets, and stating that the attachment is not sought and the action is not prosecuted to hinder, delay or defraud any creditor of the defendant.

History: 1962, PL 7-36.

43.0903 Plaintiff's bond.

(a) Before a writ of attachment shall issue, the plaintiff shall execute and file with the clerk a bond or undertaking with a surety company or 2 or more sureties, to be approved by such clerk, in a sum at least double the amount for which the plaintiff demands judgment, and in no case less than $50 in a district court and $100 in the High Court, conditioned that the plaintiff will prosecute his action without delay, and will pay all costs that may be adjudged to the defendant and all damages defendant may sustain by reason of wrongful suing out of the attachment.

(b) No bond is required when the plaintiff is the government, any instrumentality thereof, the Development Bank of American Samoa, or the United States. No bond is required in a case in which the Attorney General, as the next friend of a Samoan, shall sue a non-Samoan. A Samoan, for the purposes of this subsection, is de-fined to be a person of one-half or more Samoan blood by descent.

History: 1962, PL 7-36.

43.0904 Motion for additional security.

The defendant may at any time before judgment move the court or judge for additional security on the part of the plaintiff, and if the court or judge is satisfied that the surety on the plaintiff's bond is insufficient or has been removed from American Samoa, the attachment may be vacated and restitution directed of any property taken under it unless in a reasonable time to be fixed by the court or judge sufficient security is given by the plaintiff.

History: 1962, PL 7-36.

43.0905 Action on bond.

(a) In an action on an attachment bond, the plaintiff therein may recover, if he shows that the attachment was wrongfully sued out, the actual damages sustained and reasonable attorney's fees, of not more than $25 in any case, to be fixed by the court; and if it is shown that such attachment was sued out maliciously, he may recover exemplary damages.

(b) No action may be maintained on a bond until after final judgment in the main action unless the same is discontinued or dismissed.

43.0906 Amount of levy.

The marshal shall attach property of the defendant in an amount sufficient to satisfy the demand of the plaintiff, with costs and expenses, if sufficient property not exempt from execution can be found, giving that to which the defendant has an unquestionable title a preference over that to which his title is doubtful, and he shall, as nearly as the circumstances of the case will permit, levy upon property 20 percent greater in value than the amount which the plaintiff in his affidavit claims to be due.

History: 1962, PL 7-36.

43.0907 Manner of execution.

The marshal to whom the writ is directed and delivered must execute the same without delay as follows:

(a) Real property or an interest therein shall be attached by filing in the office in which conveyances of the real property attached should be recorded, a copy of the writ of attachment, endorsed or affixed with the officer's certificate stating that by virtue of the original writ of which such copy is a true copy, he has attached such real estate, or all of the interest of the defendant therein, describing the same with convenient certainty as the property of the defendant and naming the defendant. This subsection shall not, however, render any real property subject to attachment or execution, which by any other section of this code is made exempt there-from.

(b) Personal property capable of manual de-livery shall be attached by taking the same into custody.

(c) Stock in any corporation shall be attached by notifying the president, secretary, treasurer or managing agent of the corporation and also the defendant, if within American Samoa, that the stock has been so attached.

History: 1962, PL 7-36; readopted 1980, 16-88 §; 1982, PL 17-31 § 1.

43.0908 Indemnity for marshal.

If the marshal has any reasonable doubt as to the ownership of the property or its liability to be taken on the writ, he may require sufficient security to indemnify him for attaching it.

History: 1962, PL 7-36.

43.0909 Examination of defendant where sufficient property cannot be found.

Whenever it appears by the affidavit of the plaintiff or by the return of the attachment that no property is known to the plaintiff or officer on which the attachment can be executed, or not enough to satisfy the plaintiffs claim, the defendant may be required by the court or judge to appear before it or him and give information on oath respecting the same.

History: 1962, PL 7-36.

43.0910 Sale of perishable property.

If any attached property is perishable or in danger of serious and immediate waste or decay, the marshal shall sell the same in the manner in which property is sold on execution. Whenever it is made to appear satisfactorily to the court or judge that the interest of the parties to the action will be subserved by a sale of any attached property, the court or judge may order the property to be sold in the same manner as like property is sold under execution. Such order shall be made only upon notice to the adverse party or his attorney in case such party shall have been personally served in his action.

History: 1962, PL 7-36.

43.0911 Return by marshal.

The marshal shall make out a full inventory of the property attached and return the same with the writ of attachment. He shall return the writ with the summons if issued at the same time; otherwise, within such time after receipt as is allowed for a return of summons, with a certificate of his proceedings endorsed thereon or attached thereto.

History: 1962, PL 7-36.

43.0912 Discharge of writ upon termination of action.

If the defendant recovers judgment or the plaintiff is nonsuited or the action is discontinued or dismissed, all the proceeds of the sale and money collected by the marshal, and all the property attached remaining in the marshal's hands, shall be delivered to the defendant or his agent, and the order of attachment shall be discharged, and the property released therefrom.

History: 1962, PL 7-36.

43.0913 Discharge of writ upon bond by defendant.

If the defendant, at any time before judgment, causes a bond to be executed to the plaintiff with sufficient sureties and approved by the officer having the attachment, or, after the return thereof, by the clerk, to the effect that he will perform the judgment of the court, the attachment shall be discharged and restitution made of the property taken or the proceeds thereof. The execution of the bond shall be deemed an appearance of the defendant in the action. The bond shall be part of the record, and if judgment is against the defendant, the same shall be entered against him and the sureties.

History: 1962, PL 7-36.

43.0914 Discharge of improperly issued writ.

The defendant may at any time after he has appeared in the action, either before or after the release of the attached property, or before any attachment has actually been levied, apply by motion and upon reasonable notice to the plain-tiff, to the court in which the action is brought, or to the judge thereof, that the writ of attachment be discharged on the ground that the same was improperly issued. If it satisfactorily appears that the writ of attachment was improperly is-sued, it shall be discharged.

History: 1962, PL 7-36.

43.0915 Filing discharge order.

Whenever an order has been made discharging or releasing an attachment upon real property, a certified copy of the order may be filed in the office in which a copy of the writ has been filed and indexed in like manner.

History: 1962, PL 7-36.

43.0916 Payment of expenses where writ discharged.

All expenses relating to an attachment shall be paid by the plaintiff when a writ is discharged.

History: 1962, PL 7-36.

43.0917 Execution.

If judgment is recovered by the plaintiff, the marshal shall satisfy the same out of the property attached by him which has not been delivered to the defendant or claimant or subjected to execution on another judgment recovered before the issuing of the attachment, by applying on the execution issued on the judgment the proceeds of all sales of perishable or other property sold by him or as much as shall be necessary to satisfy the judgment. If any balance remains due on the judgment, he shall sell under the execution so much of the property, real or personal, as may be necessary to satisfy the balance. Notices of sale at public auction shall be given by posting at the courthouse door and 2 other conspicuous places in the vicinity thereof for 2 weeks in case personal property is to be sold, and 4 weeks in case of real property. Approval of the court shall be necessary for sales of real property.

History: 1962, PL 7-36.

43.0918 Priority among attachments.

When there are several attachments against the same defendant, they shall be executed in the order in which they are received by the marshal.

History: 1962, PL 7-36.

43.0919 Collection of balance due-Return of surplus.

(a) If, after selling all the property attached by him remaining in his hands and applying all the proceeds, after deduction of his fees, to the payment of the judgment, any balance remains due, the marshal shall proceed to collect such balance as upon an execution in other cases.

(b) Whenever the judgment has been paid, the marshal, upon reasonable demand, shall de-liver over to the defendant the attached property remaining in his hands, and any proceeds of the property attached unapplied on the judgment.

History: 1962, PL 7-36.

43.0920 Appointment of receiver.

The court before which the action is pending, or the judge thereof, may at any time appoint a receiver, whose pay shall be fixed by the court and assessed as part of the costs, to take possession of property attached under the provisions of this chapter, collect the revenues thereof, manage and control the same, and pay over the proceeds according to the nature of the property and the exigency of the case.

History: 1962, PL 7-36.

Chapter 10

CONDEMNATION

Sections:

I. General Provisions

43.1001 Filing of complaint and declaration.

43.1002 Possession immediately after service of notice.

43.1003 Compensation.

43.1004 Payment of compensation awarded.

43.1005 Vesting of title, and of right to compensation.

43.1006 Determination and award of compensation.

43.1007 Failure of interested parties to appear.

43.1008 Cost of litigation.

43.1009 Title disputes-Determination.

43.1010 Arbitration of compensation disputes.

43.1011 Appeal.

43.1012 Payment of arbitrators.

43.1013 Incapacity of claimants.

II. Procedural Rules

43.1020 Applicability of United States Federal Rules of Civil Procedure.

43.1021 Complaint-Caption and contents-Names of defendants.

43.1022 Filing complaint.

43.1023 Joinder of properties to be taken.

43.1024 Order for distribution of deposit.

43.1025 Notices-Delivery-Form.

43.1026 Service of notice.

43.1027 Notice-Proof of service.

43.1028 Amendment of notice or proof of service.

43.1029 Notice of appearance-Waiver of defenses.

43.1030 Amendment of pleading.

43.1031 Substitution of parties.

43.1032 Dismissal of action.

43.1033 Stipulated dismissal.

43.1034 Dismissal by court.

43.1035 Effect of dismissal.

43.1036 Deposit of money-Distribution.

Research Guide: See also 37.0401 et seq. for provisions on eminent domain.

I. General Provisions

Reviser's Comment: The law dealing with alienation of land contained in 43.1001—43.1013 of the A.S.C.A. as recodified by the legislative reference bureau had been questioned as to whether the requirements of Art. I, § 3 and Art. II, § 9, American Samoa Constitution, had been fulfilled. Since the records were not available to answer the question, the Legislature passed PL 16-88 and PL 17-31 to ensure that the law dealing with alienation of land complies with the Constitution.

43.1001 Filing of complaint and declaration.

When the government desires to acquire any land, easement, right-of-way, or other property interest, it may file a complaint in the Trial Division of the High Court of American Samoa, and, at any time before judgment, it may file a declaration of taking signed by the Attorney General, declaring that the lands or other property rights described in the complaint are thereby taken for the use of the government. The declaration of taking shall contain, or have annexed thereto:

(1) a statement of the public use for which the lands or other property rights are taken;

(2) a description of the property taken sufficient for identification;

(3) a statement of the estate or interest or property right taken for public use;

(4) a plan showing lands taken;

(5) a statement of the sum of money estimated by the government to be just compensation for the land to be taken.

History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980, PL 16-88 § 1; 1982, PL 17-31 § 1.

43.1002 Possession immediately after service of notice.

When the government desires to enter into the possession of the property immediately after the service of the notice provided for in 43.1026, the Territorial Registrar shall so state in the notice and any damage sustained by the occupant, lessee, lessor or owner of such property by reason of the immediate occupancy by the government shall be included in the compensation to the aggrieved parties. When the required notice has not been given and the government desires to enter into the possession of the property at any time during the proceedings and before the rights of the parties and the amount of compensation are determined, the Territorial Registrar shall give the required notice, which shall also specify the date upon which the government may enter into the possession of the property.

History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980, PL 16-88 § 1:1982, PL 17-31 § 1.

43.1003 Compensation.

Along with the declaration of taking, the government shall deposit in the court, to the use of persons entitled thereto, the amount of the estimated compensation stated in the declaration.

History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980, PL 16-88 § 1; 1982, PL 17-31 § 1.

43.1004 Payment of compensation awarded.

Upon the application of the parties in interest, the court may order that the money deposited in the court, or any part thereof, be paid forthwith or on account of the just compensation to be awarded in the proceeding. If the compensation finally awarded for the lands, or any parcel thereof, exceeds the amount of the money so received by any person entitled, the court shall enter judgment against the government for the amount of the deficiency. If the compensation finally awarded to any defendant is less than the amount which has been paid to him, the court shall enter judgment against him and in favor of the government for the overpayment.

History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980, PL 16-48 § 1; 1982, PL 17-31 § 1.

43.1005 Vesting of title, and of right to compensate.

Upon the filing of the declaration of taking and the deposit, title to the lands in fee simple absolute, or such less estate or interest therein as is specified in the declaration, shall vest in the government, and the lands shall be deemed to be condemned and taken for the use of the government, and the right to just compensation for the lands shall vest in the persons entitled thereto.

History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980, PL 16-88 § 1; 1982, PL 17-31 § 1.

43.1006 Determination and award of compensation.

Just compensation shall be ascertained and awarded in the court proceeding and established by the judgment of the court. The judgment shall include, as part of the just compensation awarded, interest at the rate of 6 percent per year on the amount finally awarded as the value of the property as of the date of taking, from the date to the date of payment; but interest shall not be allowed on so much thereof as shall have been paid into the court. No sum so paid into court shall be charged with commissions or poundage.

History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980, PL 16-48 § 1; 1982, PL 17-31 § 1.

43.1007 Failure of interested parties to appear.

When all of the parties interested in the property involved in condemnation proceedings fail to appear within the time set by this chapter, the court may proceed to fix the amount of compensation by arbitration, as provided for in this chapter, and also determine the ownership of the property. Such award and determination shall be as effective as though the parties had appeared and answered. Any sums ordered to be paid by the government shall be held by the government for 7 years, to be paid to the proper claimant on demand. Such sums shall bear no interest.

History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980, PL 16-88 § 1; 1982, PL 17-3 1 § 1.

43.1008 Cost of litigation.

Costs of litigation shall not be assessed against any party.

History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980, PL 16-88 § 1; 1982, PL 17-31 § 1.

43.1009 Title disputes-Determination.

(a) When a dispute as to the ownership of the property prevents the amicable settlement of and payment for the property, the Territorial Registrar shall so certify to the Trial Division of the High Court, requesting that the court deter-mine the ownership of the property in question, except that all disputes as to the ownership of communal land shall be referred to the Land and Titles Division of the High Court, solely for the purpose of determination of ownership.

(b) When a dispute is so certified by the registrar, the court shall hear the same as a civil matter, and shall, after proper hearing, enter its order and judgment determining the ownership of the property, which shall be good against all persons.

History: 1962, PL 7-25: 1969, PL 11-54; readopted 1980, PL 16-88 § 1; 1982, PL 17-31 § 1.

43.1010 Arbitration of compensation disputes.

(a) When the government does not agree to pay the sum demanded or the parties or any of them do not accept the deposit made by the government, either before or after the settlement of the question of title, the sum to be paid by the government shall be determined by arbitration.

(b) One arbitrator shall be appointed by the Governor on behalf of the government, one shall be appointed by the person or persons claiming compensation, and one, who shall be the chair-man, shall be appointed by the other 2 arbitrators.

(c) In the event the person or persons claiming compensation do not agree upon an arbitrator or the 2 arbitrators who are to choose the third arbitrator fail to agree upon a third arbitrator by a day to be fixed by the court, an arbitrator shall be named and appointed for them by the court.

(d) The award shall be determined by a majority of the arbitrators after viewing the property involved and considering such evidence concerning the value of the property as may be submitted by interested parties.

(e) The award shall be made within one month after the arbitrators have entered upon their duties, or have been called on to act by a notice in writing from any party unless the court sets a different time. The chairman of the arbitrators shall, within the time limit for the award, file the determination of the amount of the award with the court, enclosed in a sealed cover endorsed with the names of the parties to the arbitration. The court shall open the award and forward a copy of the same to the parties.

(f) The decision of the arbitrators shall be final if notice of appeal is not served within the time limited by law.

History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980, PL 16-88 § 1; 1982, PL 17-31 § 1.

43.1011 Appeal.

(a) The decision of the arbitrators may be appealed to the Appellate Division of the High Court by any person or by the government.

(b) The adverse party or parties shall be served written notice of the intention to appeal within 10 days after the appealing party receives notice of the award from the Trial Division of the High Court. The notice of appeal, together with proof of service, shall be filed with the clerk of the High Court within 2 days after service is completed.

(c) On appeal, the appellate Division may hear such evidence, including the testimony of the arbitrators, as is material, may approve, modify, revise, or reject the award of the arbitrators, and may either make a new and different award or resubmit the matter to the same or different arbitrators to be appointed in the same manner as the original arbitrators.

(d) Following its decision, the court shall enter an order that upon the payment of the required sum the government shall be the lawful owner of the property. The order shall bind all persons.

History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980, PL 16-88 § 1; 1982, PL 17-3 1 § 1.

43.1012 Payment of arbitrators.

Payment to arbitrators shall be made by the government for the time they are actually engaged in hearing the case, and for their traveling expenses to and from the place of hearing. The amount of the payment shall be fixed by the court, but the payment to each arbitrator shall not exceed $20 per day, plus transportation.

History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980, PL 16-88 § 1; 1982, PL 17-31 § 1.

43.1013 Incapacity of claimants.

When a question arises as to the legal capacity of any claimant for compensation to execute a discharge or release upon payment of the sum agreed to be paid, rendered, or awarded, the court shall appoint a guardian or take such other action as may be required by law.

History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980, PL 16-88 § 1; 1982, PL 17-31 § 1.

II. Procedural Rules

43.1020 Applicability of United States Federal Rules of Civil Procedure.

The Rules of Civil Procedure for the District Courts of the United States of America shall govern the procedure for the condemnation of real and personal property under the power of eminent domain, except as otherwise provided in 43.1021 et seq.