The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-02-13
OPINION OF THE COURT By JUDD. c. J.

OPINION OF THE COURT By JUDD, c. J.
This is an action of assumpsit for
damages for breach of promise to
marry. It was tried at the last Dec
ember Term OF the Circuit Court
Second Circuit held at Lahaina,
Maui. The damages laid were five
thousand dollars. Process was ser
we'd upon the defendant May 18th,
1893. On the 18th Nov. the plaintiff
moved for an order declaring defend
ant in default, upon the clerks certl-
ficate that defendant had failed TO
answer within twenty days after ser
vice Default was ordered on the
9th Dec. at term and the same day,
the Court, on motion by defendant TO
yacate the order of default supported
by affidavits, set aside the default
and allowed defendant to answer.
The affidavits are In substance that
defendant and his counsel depose
that an answer was prepared within
a few days after service, In Honolulu,
and they verify believe that it was
mailed TO the clerk OF the Court" at
Wailuku. Maui. An exception was
taken TO the granting OF this motion,
which l. embodied In the plaintiff 8
hill of exceptions The affiidavits do
do not meet the requirements OF the
law in such matters. If the answer
had been sent to an attorney or other
persou at Wailuku to be by him per
sonally filed with the clerk, or II sent
to the clerk by registered letter, or II
a letter had been separately mailed
asking the clerk to acknowledge re
ceipt of the answer 1t would show
the exercise of reasonable diligence
III this course had been followed the
loss or miscarriage OF the answer
would have been made known to de
PENDANTS counsel in time to have
rectIfied the matter. In the case be
fore US there is the unsupported
statement that defendants counse
"yerily believe" that the answer wa
sent bv mail to the clerk. This falls
far short of a deposition that counse
had mailed it personally:
s.The affidavit to set aside defaul
must state that default has beel
taken. show reasonable dlllgence
must set forth facts showing goo'
defense and not mere conclusion
law: should also state the facts relies
upon in such motion, so that tn
Court may Judge of the question Q
merits" SC Encycl- Law, pp- ~
zl6& II and cases there cited
The affidavits before Us do nc
show that the answer was actuall
sent TO the clerk or reasonable dill
oence in ascertaining If 1t had reache
the clerk, or any excuse by way c
mistake or accident why, If sent,
had not been received by the clerl
The affidavits are also insufficient 1
NOT disclosing the facts relied upo
in defence. 1t is not sufficient
state that defendant has good an
rnaritorious defense" without sett1n
ont what it is so that the Court ca
indoe whether it IS mer1tor1ous.
Power Is given to the Judge
Court to open a default IN their oil
cretiou. for good and sufhclel
reasons Sec 1126 Civil Code W
do not deem the reasons In this ca:
70 he good and sufficient Beng
default the statute, Sec. 112I CIV
Code. directs the clerk - to enter Il
canse upon the calendar or asses
ments to be made sr pdrte at Il
term. upon the sole abduction
nIaintiff's evidence, without ADM
tine the defendant to rebut u
sane";-ouly allowing defendant
cross examine plaintiffs witness
and to address the jury In mitigate
of damages. But the default ~
oDened and defendant put IN ties
mony in defence which may have
Auenced the verdict We susta
this exception, deeming the err
sufficient upon which to order ne
triaI so that the case may be procee
cd with, with defendant In defau
We remark here that the Court, up
plaintiffs demand, should ma
sioned the order declaring defenda