The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-10-25

OPINION OF THE COURT By FREAE. J
Error to the Circuit Court of the
First Circuit.
John ). 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, 1--WE jointly promise, -
etc. The judgment is, "that the
plaintiff do recover against the de-
fendants," etc. 1t Is assigned as err
ror, "that said judgment was errone-
ously made and entered as joint
and several Judgment against the
defendants and not as joint judg-
ment only The defendant in error
pleaded an nuElo est erratum.
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 we'll 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 a statutory pre-
requisite for the issuance of the
writ, but, whatever may be the effect
of an omission 10 so allege, 1T IS too
late for the defendant to take ad-
vantage of it after issue joined upon
the merits, although the Court might
of it's 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 %, 1898 The writ was issued
August 25, 1898. 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, 137 y. ).
577, Judgment was entered May Is.
1856, and an appeal was allowed
May %, 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. 4. DIRK. Cen. Ratlacdy,
I2S U. S. 25S. In Dutcher .. Wright,
81 u. S. 553, an insoIyent made an
assignment of his property December
s, 1869, and was adjudged 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 |
ruptcy. 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 Tn &c 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 L. Bowler aud |
others" This makes John +. Bowler |
sole plaintiff In error (the words land |
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 |
for the non-joinder. Simpson q. Greeley, !
40 Wall. 152 Miller {. Mckenzie, 10 |
Wall. So.
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
plea or motion to quash or dismiss,
although the Court may, of its own
motion, dispose of the writ, even
after joinder in error, for defects
apparent upon the record.
The question of parties not having
been argued by counsel, we will dis
pose of this case upon its merits
At common law, in an action
against several defendants jointly,
the general rule was that judgment
could be entered only for or against
all; and since Judgment could not be
entered against parties not served
with process, it could not be entered
at all In JOINT action unless all the
defendants were served. But by
statutes known as "Joint-debtor Acts"
in most of the United States judg
ment may be entered against all the
defendants jointly, though some were
not served, to be enforceable, how
ever. only against the joint property
of all and the separate property of
those served. See Black, Judgments,
Sections 1925; Freeman, Judg-
ments, Sections 43-44. By Section