Kalanianaole v. W. W. Dimond & Co.

16 Haw. 153, 1904 Haw. LEXIS 26

Opinion

OPINION OF THE COURT BY

HARTWELL, J.

This is a writ of error to the Eirst Circuit Court, assigning as error* the order of the court in dismissing an appeal taken by the plaintiff-in-error from a judgment by default made against him by the district magistrate of Honolulu.

This court held in Luce v. Chin Wa, 5 Haw. 629 (1886), that an appeal did not lie from a judgment by default.

The statute in force at that time was that “any party deeming himself aggrieved by the decision of any police or district justice in any case, whether civil or criminal, may appeal,” etc. We see no distinction between the wording of that statute and that of the statute now in force as amended, by Section .68 o£ Chapter 57 of the Laws of 1892, and reading that “appeals shall be allowed from all decisions of district magistrates in all matters, whether civil or criminal.”

C. W. Ashford and G. A. Long, attorneys for plaintiff-in-error.. Thayer & Hernenway, attorneys for defendant-in-error.

In order, therefore, to hold that the dismissal of the appeal by the Circuit Court was erroneous in this case, it would be necessary to overrule the decision in Luce v. Chin Wa. We are not. prepared to do this. As stated by the court in that case, “The reasons, if any exist, for the removal of a default should be presented to the court which has ordered it.”

The writ is .dismissed and the case remanded to the First. Circuit Court.