The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-07-27


and the defendant pleaded the stat
ute of limitations. Mr.. Justice Dol
decided that the allegations of thu
(Plaintifss) complaint are satisfactor
lily proved and the plaintiff is EMIT
led to Judgment
Thus the statute of limitations wa!
then in issue and decided against the
defendant Norris, and no exception
was taken by the defendant to this
although other exceptions were
taken and put into Bill of Except
ions and taken to the Supreme
Court.
l 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 a de-
fense is a personal and special one
and was raised in that action, and
when decided against defendant it
neither was appealed from nor ex-
ceptions taken to higher Court
and its further consideration by q
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.
l am OF the opinion that the Bill
does not set forth sufficient grounds
in Equity to entitle the plaintiff to
maintain his cause and l sustain the
demurrer.
Decree accordingly"
In addition, we observe that it
does not appear to us that, if the
present plaintiff had been rein
stated to the position he was in on
the 22nd August, 1891, when the
decision of Mr.. Justice Dole in the
law case was filed and before judg-
ment was entered therein, a motion
In arrest of judgment would have
prevailed. The declaration was in
debt on a judgment of a Court
of record of foreign
country, and the date of the j1dg-
ment was given, a date nearly
twenty years before the action was
begun, and the statute of limitat-
ions was pleaded. Remembering
hat judgment can be arrested for
40 other than substantial faults or
lefects apparent on the record
either in the pleadings or the YER
lict of the jury, and (by parity of |
in the finding of the
Court jury waived, how does it ap |
bear that the record discloses
,rror?
The plea did not indicate
whether the statute of limitations
# six years or that of twenty years
vas intended to be pleaded. But
Ve take it that the plaintiff intend
d to plead the statute where the
'eriod of limitation is six years.
Snt there might exist exceptions
which would take the cause out of
be operation of the statute.
'hese need not be pleaded in the
eclaration nor set up by plea to
be statute. They could be made
, appear by evidence. There was,
therefore,, no error apparent on the
ace of the record. The decision of
1e Court upon the facts and the
Nv, whether it found that foreign
ldgments of Courts of record were
OF barred by the six years limita-
on, or whether it found on the
Vidence that the cause was taken
ut of the operation by some ex-
option to the running, of the
atute, might be considered by
le then defendant to be erroneous
nd the subject of exception. No
lception was taken on this point. |
o distinct ruling was asked for SO I
lat exception could be taken. The {
eadings do not disclose any defect /
Id we therefore hold that motion :
arrest, if made seasonably, would !
1t have availed the plaintiff. /
The proper method of raising the |
1estion as to whether the judgment
as barred was by exception. Not {
king this course, defendants op- a
to test this question was I
st, and to allow him the opportun- :
= now would not be in accord with 7
e rules of Equity when invoked to g
terfere with judgment at law. $
Authorities to sustain the view /"
at the error complained of must be t
)parent on the record and not saved r
= any statutory exceptions or q
otion in arrest will not lie, are: b
Sawyer v Borton, IA Mass. 40. 4
3 Blackstone Com. 1893. q
Board V. Adams, rs Ind. 504. i,
We affirm the decree sustaining h
e demurrer and the order dissolv- I,
g the injunction. il
a. S. Hartwell and f. NJ. Hatch h
r plaintiff; p. Neumann and Carter a
Carter for defendant. o
July 13, 1894 o
5sENTING OPINION OF WILLIAM FOSTER 8
ESQ. I
l respectfully dissent from the +,
sjority of the Court, for the follow C
o reasons.