G. W. Macfarlane & Co. v. McCandless

8 Haw. 118

• Court: Hawaii Supreme Court
• Decided: September 4, 1890
• Status: Published

Opinions

Opinion op the Court, by

Bickerton, J.

Judgment was obtained by the plaintiffs in this case on the 21st of November last, defendant not answering, and default having been granted by the Court. At the close of the January term a motion was made to set aside default, defendant claiming that service was defective, in that no copy of the petition and summons was left with him by the officer. After hearing, the Chief Justice affirmed the judgment, and the matter now comes here on appeal from that decision.

By the Court.

The question of discretion of the Court has been passed upon by this Court. “An order opening a default is a matter of discretion and not reviewable, except in a - clear case of abuse.” Bishop vs. Pacific Navigation Co., 7 Hawn., 276. “Whether a Justice will re-open a case for a new hearing after his final decree made and not appealed from is a matter of judicial discretion from which appeal does not lie.” Makalei vs. Himeni, 7 Hawn., 168. The statute makes these matters matters in the discretion of the Court. “The Judge or Court shall have power, however, to open the default in their discretion for good and sufficient reasons.” Section 1126, Comp. Laws. But the defendant claims that the Chief J ustice opened the default by investigating and examining the case as to the service and the nature of the defense defendant could have availed himself of if he had answered. We do not think this was opening the default, it was only doing what was necessary to be done to enable the Court to see if any injustice was being done the defendant, or if there was any good and sufficient reason why it should exercise its discretion and open the default. The Chief Justice, in his opinion, says: “Having examined this matter fully, I am of opinion that the service was made in all respects as required by law.” And, further on, he finds that the defense proposed to be set up, which was in the nature of a set-off, “is an independent matter and ought to be the subject of an independent suit.” Consequently the defendant is not deprived of his right to recover on any claim he might have against the plaintiff. The Chief Justice, therefore, found that there was no good and sufficient reason for opening the default, and exercised his discretion in the matter and affirmed the judgment obtained on the default.

The appeal is dismissed, and the judgment of the lower Court affirmed.