The Hawaiian gazette., 1893-10-31

OPINION OF TIE COURT BY FREAR. J
Error to the Circuit Court of thu
First Circuit.
John s. Walker, now deceased, re
covered judgment against the plain
Tiff in error and eight others, in as
sumpsit upon a note. The words Of
the note are, I'VE jointly promise, ,
etc. The Judgment is, shat the
plaintiff do recover against the de.
PENDANTS" etc. 1t is assigned as er.
ror, that said judgment was errone-
ously made and entered as Joint
and several Judgment against the
defendants and not as a joint judg-
ment only" The defendant in error
pleaded ia auIo est erTdtuiR.
Counsel for defendant in error con
tends that the writ should be dis
missed for the reasons, that the
executrix is not made co-defendant
with the executor; that there is no
allegation in the petition that the
Judgment is not satisfied; and that
the writ was not issued within six
months from the rendition of judg-
ment.
The fact that there is an executrix
as well as an executor of the will of
the plaintiff below, now deceased, was
not brought to the knowledge of the
Court in any way which would justify
Us IN noticing the fact, if fact it be.
There is nothing but the defendants
statement of the fact unsupported
by affidavit.
1t should be alleged in the petition
that the judgment was not fully
satisfied, this being q statutory pre-
requisite for the issuance of the
writ, but, whatever may be the effect
of an omission to so allege, it is too
late for the defendant to take ad-
vantage of it after issue joined upon
the merits, although the Court might
of its own motion dismiss the writ if
It appeared by the record that the
Judgment had been satisfied. This
does not appear in this case.
The judgment was entered Febru-
airy Is, 1893. The writ was issued
August 25, 1893. The statute allows
the writ to be issued within six
months from the rendition of judg-
ment." We think that this writ was
issued within the time prescribed by
the statue. In Smith Q. Gale, 1877 U. S.
ST., Judgment was entered May 25.
1856, and an appeal was allowed
May Is, 1883. The Court held that
the appeal was taken within two
years" after the entry of judgment as
prescribed by law. To the same
effect is Credit Co. Z. ArI. Cen. Railsrav.
lbs q. S. 25S. In butcher q. WrfqIt.
"a Q. S. $50, an insolvent made an
assignment of his property December
s, 1869. and was sdiudged bankrupt
on his own petition, April s, 1870.
The Court held that he made the as
signment within four months" be-
fore the filing of the petition in bank
ruptey. The general rule is that in
computing the time within which an
act is to be done, the first day should
be excluded and the last included.
See Ia 70 Election Lar, s Haw. 6O2.
There is one point which should be
touched upon though not called to
our attention by counsel. In both
the petition and the writ the plaintiff
in error, and defendant below, is de.
scribed as John +. Bowler and
others" This makes John F. Bowler
sole plaintiff in error (the words "and |
others" being surplusage), but the
record shows that there were eight
other defendants below. All of the
defendants below should be named
IN the writ, and all should Join in
error unless sufficient cause be shown
Tor the non-ioinder. Simpson {. Greeley. |
DO Wall. 152 Miller e. Mckenzie. 10
Wall. $50.
1t may be added that objections
like the foregoing which do not go to
the question of the error assigned
should be raised by demurrer, special
ples or motion to quash or dismiss,
although the Court may, of its own
motion, dispose of the writ, even
sfter ioinder in error, for defects |
upon the record.
The question of parties not having |
Oeen argued by counsel, we will dis |
pose Of this case upon its merits.
At common law, in an action |
against several defendants jointly, |
he general rule was that judgment |
,ould be entered only for or against |
u; and since judgment could not be |
against parties not served !