The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1890-12-02
OPINION OF THE COURT BY BECKER
TON, J.


TON, J.
Judgment was obtained by the
plaintiffs In this case on the 21st of
November last.defendant not answer
ing 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 mat
ter now comes here on appeal from
that decision.
BY TIE COURT.
The question of discretion Of the
Court has been passed upon by this
Court.
AN order opening a default is
matter of discretion, and not review
able except in clear case of abuse"
Bishop il Co. VS.. The Pacific Navi-
cation Co., VII. Haw., 276.
Whether a Justice will reopen
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 ct al. VS.. D. Himeni, VII.
Haw., 16S.
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,
Com. Laws. But the defendant
claims that the Chief Justice opened
the default by investigating and ex-
aiming the case as to the service
and the nature of the defense that
defendant could have availed him
self of if he had answered. We do
not think this was opening the de-
fault, it was only doing what was
necessary to be done to enable the
Court to see if any injustice was be-
ing 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: " Hav-
ing examined this matter fully, l am
of opinion that the service was made
IN all respects as required by law"
And further on he finds that the de-
tense 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, there
fore, found that there was no good
and sufficient reason for opening the
default, and exercised his discretion
in the matter and affirmed the judg-
ment obtained on the default.
The appeal is dismissed and the
Judgment of the lower Court
affirmed
CT. Carter and P. Neumann for
plaintiff; V. v Ashford for defend
ant
/ have found some difficulty in
coming to a conclusion in this cause
from the circumstance that the
grounds upon which the Chief JUS
tee bases his refusal to open the de-
fault appears to me to be erroneous.
He saws: II" l was willing to open the
default so far asto see if the defendant
had a defense which he could have
availed himself of if he had answer
ed and to allow it if of that charac-
ter. find that the plaintiffs claim
is for goods sold and delivered-cer-
tain iron piping The defendants
counter claim or set off is for the use
of a certain artesian well-boring rig.
I think under our decisions this is
not a matter of set of, and would
not be received as such if the de-
fendant had answered. The offset |
must be of the same kind and de-
nomination and existing in the same
right to which | can give no other
meaning than that the offset must
arise in some way from the original
transaction between the parties. The
use of the well boring apparatus is
an independent matter, and ought to
be the subject of an independent
suit"
This conclusion of law is, I think,
a mistake. "a set-off is a counter
demand which the defendant holds
against the plaintiff. arising out of a
transaction exuinslc to the plaintiffs
cause of action. The right of set-off
is very different from a mere right to
reduce or defeat the plaintiffs de-
mand on account of some matter
connected herewith" Waterman
on Set-off, Sections 2 and 3, and
Avery VS.. Brown, 81 Conn. 1851
Now if the refusal to reopen the
default was based upon a wrong con-
clnsion of law, would that fact affect
such refusal?
By our statute the opening of a
default is matter of discretion with