The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-07-27
OPINION CT THE COURT By CIRCUIT
JUDGE WHITING.

The defendant, on the 9th day of
February, 1892, moved for stay or
execution for the following reasons
l. Because said action IS Ia law an
action of assumpslt, and that said
action, as appears by the plaintiff 5
declaration, was and IS properly and
legally barred by the Statute OF Linn
itatiOns of SIX years, and that Judg-
ruent was and Is therefore erroneous
aud void.
2. Because Judgment herein was
entered inadvertently, erreneously
and contrary to the Rules of Court
3. Because execution issued on the
Judgment so entered IS and ought to
be STAYED until the defendant can
obtain a hearing upon his motion TO
set aside said judgment, and TO sue
out q writ OF error on the same II
slch motion be denied.
Stay OF execution was thereupon
granted to enable the defendant to
OBTAIN hearing before the Supreme
Court st the next April term thereof
upon a motion to set aside the ludg
meut. and in arrest of the same, the
said defendant having fled the bond
required by statute.
Ou the first day Of this April term
defendant moved 10 set aside the
Judgment, and that further judgment
be arrested on the grounds
l. That the said Judgment was en-
tered pending the decision OF the
Court IN Bauco on the defendants
exceptions and contrary to the Rules
OF this Court.
2. That the pleadings IN the cause
show that said action was and Is
barred by the Statute Of Limitations
OF six years
An affidavit was also filed showing
that 10 evidence was offered at the
trial OF the cause OF a new promise
on the part of the defendant TO pay
the claim sued on
I ind that said cause was COM
menced and service Of the complaint
therein made upon the defendant on
September 4tE, 1890
That said cause was tried before
Dir. Justice Dole, jury being waived,
on August 9th, 1891.
Tuat during said trial certain ex-
ceptious were noted IN writing by de-
PENDANT and allowed by said Justice.
That the said Justice filed his
written decision therein on the 22nd
dav of August. 1891, IN favor OF the
plaintiff
That on August 18th, 1891. judg-
ment was entered for ST., 294-23 and
S23. 65 costs
That on August 29th, 1891, defend
ant filed his bill of exceptions EN-
bodyiug one OF the exceptions taken
bv him at the said trial, aud two ex-
ceptions taken to the findings in said
decision, and said bill of exceptions
was allowed.
That on December 9Th, 1891, the
said Justice allowed the plaintiff >
attorneys bill of costs for S4O1 50,
including attorneys commissions as
in a5sumpsit.
That on December 7th, 1891, exc
cution issued by order of the SAID
Justice for S12,032 70, to wit: SILL
COL 90 debt and S43075 costs.
That no amendment of the judg-
ment roll or additional judgment was
entered.
Tuat the defendants exceptions
were overruled on February 9th, 1892.
1 therefore reserve for the consid
Grafton OF the full Court IN Banco
the questions: ,
Q) Whether the judgment entered
should be set aside.
(2) Whether further judgment
should be arrested for the cause
alleged in defendants motion
The pleadings in the case and the
decision of Mr.. Justice Dole may be
referred to as part hereof"
Rich. f. BIDKERToN,
Justice Supreme Court.
DECLARATION.
"The plaintiff above named, L. de
Herblay, complains of the defendant
above named, Samuel Norris, for.
eigner by birth, ard for cause OF
action alleges:
That heretofore. to wit. on the 4th
day of October, 1870, In the city OF
New York, State of New York, In the
United States of America, the plain
tiff brought her certain action at law
against the defendant In the Su-
preme Court of the State of New
York. for the city and county, to re-
cover ITOIu SdlNl AAO ONbA
Of S4.6S6 90, with interest thereon
and costs of suit.
That at the time of commencement
OF said action and the rendition OF
the Judgment therein; hereinafter
mentioned. the said Supreme Court
was a Court OF Record in said city
and county of New York, having
jurisdiction over the parties plaintiff
and defendant in said action, and
having jurisdiction over the subject
matter of said action
That thereafter, to wit, on the 10Th
day of October, 1870, such proceed
ings were had in said action that
said Court rendered judgment In
favor of this plaintiff and against
the defendant, for the sum OF
S5,36S SO principal, interest and
costs.
That no payment of said sum due
upon said judgment or any part
thereof has ever been made, and the
same Is now wholly unsatisfed