Lazarus v. Trousseau

4 Haw. 567, 1883 Haw. LEXIS 42

• Court: Hawaii Supreme Court
• Decided: January 31, 1883
• Status: Published

Opinion

Opinion of the Court by

Austin, J.

This was an action of assumpsit upon a promissory note for-$1,000 and interest. Issue wasgoined, and two trials were had before* the Court and a jury, on which the jury disagreed. Thereafter, and on November 10, 1882, the defendant tendered and paid into Court, on the plaintiff’s claim-, $1,018.25 in legal tender, which was the exact amount due as claimed by the complaint on the note. And thereafter, on January 4, 1888, the defendant paid into Court $112.20 as the costs.- And thereafter, on January 11, 1883, the' plaintiff moved before-Mr. Justice McCully, in open Court, for judgment against the-defendant, which was denied, and the plaintiff appealed to-this Court.

J. Russell, for plain-tiff; R. E. Bickerton, for defendant. Honolulu, January 31, 1883.

Doubtless, by all the authorities, the payment into Court of the whole amount claimed in the complaint was an. unequivvocal admission of the- whole claim.

See Roosevelt vs. N. Y. and Harlem R. R. Co., 15 Barb., 556; Conastoga and Morrisville Plank Road Co. vs. Skinner; 5 Burrows, 2,639-40; 1 Manning and Granger, 873; 8 Adolphus and Ellis, 144.

The defendant thereafter was estopped from* making-any defense- to the action.

Our rule 14 says “ costs shall follow judgment in all original, actions in this Court.'”

The Code, Section 1,109, in--case of default after service-of process, provides for entry of judgment for the amount claimed,, with costs.

The acts of the defendant amounted practically to a cognovitr a confession of judgment. Thej were more than a default'.

And we hold that the-plaintiff was entitled to a judgment under our law, and that his motion for judgment in open Court should have been, granted for the whole sum paid in, with full costs.

Let judgment be- so* entered, with costs- of. this appeal.