The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-04-08

they were done in their proper logical
order.
OPINION OF THE COURT PER JUDD, C. ].
Section HOG of the Civil Code as
amended Compiled Laws, PIP. 322
and 3 makes it incumbent upon q
defendant served with summons in
an action on liquidated demand to
lille either demurrer or an answer
denying the facts, " Provided that in
all cases where the defendant is sued
as the maker, drawer, acceptor or
endorser of any bankers check, pro-
missory note, bill of exchange, or
other negotiable security, he shall not
De asto~ed to file an answer IN
less he shall file Herewith an
affidavit made by himself or
by some person cognizant of the
facts, on his behalf, that the defend
ant has good defense to the action
on the merits, and stating some sub
stantial ground of defense to the
action, if such action be commenced
within six months after the dis
honor of the instrument on which
the action is brought
In the case before US the action is
on promissory note dated October
rs, 1891. for $500 signed by de-
PENDANT Peterson and nine others,
payable to the order of John L.
Bowler, trustee, six months after
date, with interest at one per cent.
per month, upon the payment of
which Bowler was to assign to the
makers the mortgage upon the
'Elele" newspaper plant. The note
was endorsed by Bowler to plaintiff.
The suit was brought October IL,
1892, and all the defendants were
served. On the 4th November, 1892,
the defendants attorney filed with
the clerk a paper as follows: .'ln
''the Supreme Court of the Hawaiian
Islands. January Term, 1893.
"John S. Walker VS.. A. 2. Peterson
set al. Defendants answer. And
snow come the defendants by their
attorney and deny the truth of each
land every allegation in plaintiffs
complaint contained. (Sig.) A. Z.
Peterson and the names of all the
defendants by their attorney A. 2.
Peterson. Honolulu, Ell. l., Nov. 4,
1892"
At the February Term, 1898, of the
Circuit Court, First Circuit, to which
the case came by the Act to reorgan-
ize the Judiciary Department, on the
18th day Of February, counsel for
plaintiff having given written notice
to defendants counsel of his inten-
ton SO to do, applied to the Court for
Judgment by default on the ground
that no answer had been filed as by
the statute IN such case made and
provided. The motion was heard on
the 25th February. The notes of
proceedings by the clerk say that
''the Court grants the motion on the
ground that no answer had been filed
in accordance with law and the
purported answer is ordered
stricken from the record" A
certificate signed by the clerk,
and dated the same day, is on
file to the effect that no answer &C.
cording to the statute in such case
made and provided has been filed in
the cause, and that it appears by the
return of the Marshal that each OF
the defendants has been personally
served with a copy of the summons
and that more than twenty days have
elapsed since service and no answer
complying with the statute has been
fled by any of the defendants. The
order declaring defendants in de
fault, signed by Circuit Judge Viii
ting is dated the same day and recite.
that it appears by the certificate Of
the clerk, made and filed this day
that the defendants are in default
and that no answer by one or either
of them has been filed as by the sta
tute in such case made and provided
and it appearing that plaintiffs claim
is based on a promissory note made
by defendants, it orders, adjudge
and DEGREES the defendants to be il
default, and refers to the clerk tn
assessment of the amount of tn
plaintiff g claim-principal, damage
and interest-and to enter judgmen
thereupon with costs.
To this the defendants took excep
tons. It is urged upon us In supper
of the exceptions that the proceed
ines we're irregular and should be Sc
aside, because an ans1cef' SoaS .T1ted Will
in twenty days and the clerks certlt
cate is defective and untrue In statln;
that no answer was filed. 1t shoul'
have said that the answer filed wa
not accompanied by an affidavit sci
+;no ont some substantial ground @
defense. Moreover, that the orde
declaring defendants in default wa
made before the So called answer wa
ordered to be stricken from the MES
We do not regard this position q
If the clerks minutes woui
indicate that the motion for defau
was granted before the answer Wa
ordered stricken from the files, TIL
cannot impugn the record itse
which consists of the certificate OF tn
clerk that no answer as required o
statute was filed and the order &c
Judgment by default which reclte
the certificate. The legal presumil
tion is that where the date is til
same of several acts, they must |
considered to have been done in the
proper logical order, and we m e,N
presume that the certificate was hle
before the order. We notice that IL
clerks minutes state the grannttlng. :
the default and the striking OF OF IL
answer in one and the same sentenc
The statute, Section 10y, Cor
piled Lave, entities plalntln 10