The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-07-27

and the defendant pleaded the stat
ute of limitations. Mr.. Justice Dole |
decided that the allegations of the |
Plaintif7s) complaint are satisfactor-
lily proved and the plaintiff is EMIT
led to Judgment
Thus the statute of limitations was
then in issue and decided against the
defendant Norris, and no exception
was taken by the defendant to TINS
although other exceptions were
taken and put into Bill of Except
ions and taken to the Supreme
Court.
I cannot regard this omission to
further contest the question OF the
action being barred by the statute OF
limitations as a mistake for which
Equity will grant relief; Such De
tense Is a personal and special one
and was raised In that actlon, ana
when decided against defendant IL
neither was appealed from nor ex-
captions taken to higher Court
and its further consideration by
higher Court not being urged was
rather a matter of abandonment than
mistake. The present plaintiff could
have availed himself of the effect of
the statute of limitations in the case
at law and it does not appear in the
Bill that he was prevented by mis-
take or any other of the grounds
upon which Equity will relieve.
/ am OF the opinion that the Bill
does not set forth sufficient grounds
| in Equity to entitle the plaintiff to
| maintain his cause and sustain the
! demurrer.
Decree accordingly"
In addition, we observe that 1t
does not appear to US that, II the
present plaintiff had been rein
stated to the position he was IN on
the 22nd August, 1891, when the
decision of MIR. Justice Dole In the
law case was fled and before Judg-
! mept was entered therein, motion
In arrest of judgment would have
prevailed. The declaration was IN
debt on a judgment of Court
of record of foreign
country, and the date of the jldg-
ment was given, a date nearly
twenty years before the action was
begun. and the statute of limltat
ions was pleaded. Remembering
that Judgment can be arrested for
no other than substantial faults or
defects apparent on the record
either in the pleadiDgs or the YER
dict of the jury, anu 10y party or
reasoning) In the finding OF the
Court jury waived, how does 1T ap
pear that the record dlscloses
error?
The plea did not indicate
whether the statute OF Limitations
of six years or that of twenty yeal s
was intended to be pleaded. But
we take it that the plaintiff intend
, ed to plead the statute where the
period of limitation is six years.
, But there might exist exceptions
which would take the cause out OF
the operation of the statute
, These need not be pleaded In the
! declaration nor set up by plea to
+ the statute. They could be made
!, to appear by evidence. There was
therefore, no error apparent on the
face of the record. The decision Oh
the Court upon the facts and the
law. whether it found that foreign
, judgments of Courts of record We're
not barred by the six years llmlta
{ ticn, or whether it found on the
4 evidence that the cause was taker
3 out of the operation by some ex
{ ception to the running, OF th'
! statute, might be considered b!
, the then defendant to be erroneou
and the subject of exception. NJ
exception was taken on this point
No distinct ruling was asked for 81
q that exception could be taken. Tn
t pIeadings do not disclose any defec
= and we therefore hold that a motion
f in arrest, If made seasonably, Woult
not have availed the plaintiff.
q The proper method of raising tn
question as to whether the judgmen
was barred was by exception. No
i taking this course, defendants op
o portunity to test this question wa
d lost, and to allow him the opportun
- ity now would not be in accord wit
d the rules of Equity when invoked t
e interfere with Judgment at law.
Authorities to sustain the yle7
- that the error complained of must b
V apparent on the record and not save
by any statutory exceptions or
d motion in arrest will not lie, are:
al Sawyer V. Borton, IA Mass. 47O.
n 3 Blackstone Com. 1913.
: Board V. Adams, rs Ind. 504.
is We affirm the decree sustainln
D. the demurrer and the order dissolN
1T ing the injunction.
lie A. S. Hartwell and T. NJ. Hate
Is for plaintiff; p. Neumann and Carte
a & Carter for defendant.
Honolulu, July ID, 1894.
TO DISSENTING OPINION OF WILLIAM FOsTE
ID ESQ.
Of
le 1 respectfully dissent from IL
K Majority of the Court, for the fOlloI
n ing reasons: