The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1886-08-24

former class % Judgments. we'll rs the latter.
The Court II this utterance supports Itself oy no
authority. Ii Is IN CONFIRMATION 10 the current OF
previous judicial findings cf the same State but II
does not express itself rs overriding them Mr..
Justice Field, then Chief Justice Field, says IN Mott
vsSnith. l6 Cal. 49, To eniiile objections TO con-
sideratiou here, they must be presented 10 the
Court below in the first instance, at least, IL they
are of a character which might have been then
obviated by the production of other evidence
In GUY vs.. Ide. s Cal. 80, the Court say, when
remedy is So perfectly attainabie IN the Court OF
original jurisdiction. appellate Court VIII not
administer il, for any cause tbatcan be assigned
The case uf Holman w. Sgourney. II Met. 40,
and Ball vs.. Burke, II Cush. 50, NOR explicitly
statute Of Mass amended the old statute by strik-
inc out the words, sin which any issue has been
joined" and the Court in these cases held that ap
peal lay from Judgment ON default and for nom
suit 4 reason given Is that the judgment upon
default mas be for sum too large or too small, or
may be rendered for causes of action not EN- braced
in the Court, matter which may be corrected upon
an appeal. The Massachusetts Courts are bound
by the express Legislative Interpretation given 10
the statute by the amendment, and the Commits
sioners' notes indicating that purpose.
Upon reason, ii is not satisfactory 70 hold that,
party by merely suffering Il default IN the Court
of original jurisdctiou,s may IN the form of an
appeal take his case for trial before the appellate
Court. The theory of appeal is to afford retrial
in superior tribunal, which may correct errors
OF Law, and findings of fact, as made in the lower
NOQrt. Inc pAlOtlU las u IlPuI u u upon
issue Joined in the original Court II judgment is
then rendered against him, he may choose TO pro-
coed further. and risk 10 increase of costs. II
the defendant, being duly summoned does not ap-
pear he seems to plead HOi0 cOHteHdeTe. He con-
sents to Judgment for the plaintiff if he can make
his case eN parte.
Until the default is removed, il is MS complete
when first ordered, If the defendant did not ap-
pear at any time thereafter. The reasons, If. any
exist for the removal of default. should be pre-
sented to the Court which has ordered 1t. Under
the appellants claim OF appeal. default may be
suffered without danger. The jurisdiction OF the
Court, to which the defendant is legally summoned
may be ousted in every eise. We cannot hold,
even upon the authorities cited, that this is rea
sonable construction of the statute. line of
New York authorities support the view that an APP
peal does not lie from Judgment rendered on de-
fault.
In Dorr vs. Birge, Barb. 35l, the reasoning of
the Court IS the jurisdiction of this Court is only
appellate. 1t only review the decisions of the
County Court. If party 10 the appeal to the
County Court may suffer n default and there and
then appeal to this Court it would be equivalent to
appealing in the first instance directly from the
judgment of the justice of the peace to this Court
Gelstou VS.. Hoyt, Is John. 55l, is strong author
ity for this vie other authorities are
Sands vs. Hidreth. u John. 1875
Harvey vs. Cuvler. II John. 49,.
Colder vs.. kuickerbocKer, , Cowen 81.
In 20 john 2SS. Adams ". Oaks, the language of
the statute gives an appeal 10 every person who
shall think himself aggrieved by any order of any
Justice"
The Court per Mott j.. say: ITO allow the de-
PENDANT by suffering default TO pass by the JUS
tees Court, 'would prevent the right of appeal
which implies an actual previous litigation in the
tribunal appealed from. Ii would convert the ap-
pellate Court into one IF original jurisdiction.
Judgment By default for want of appearance, is,
for this purpose equivalent 10 a Judgment con-
fession." In the'Siew which adopt appeal is
not to be allowed in this case.
A. Rosa for the plaintiff; w. Il. Castle and H. E.
Avery for the defendant.
Honolulu, July 81, 1886.