The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-07-03
OPINION OF THE COURT BY B1cKERToN, J

OPINION OF THE COURT BY BICKERToN, J.
This case was brought in the Dis
trict Court of Honolulu, and jndg-
ment in default was entered 10 favor
OF the plaintiff; few days after
wards defendant moved the Court to
set aside the default and re open the
case, based on the following
affidavit:
Nov comes S. M. Kaaukai the
defendant, and on oath deposes and
says that he is the defendant in the
above cause; that on Friday after
noon last when the case was tried,
he was notified that it was holiday
and that no business would be done
In the afternoon OF said day In the
Government Offices, and the front
door of the Court Room was shut, so
the defendant believed his iuforma
tion; and that's why be did not come
hotoro A." Court. and deponent
further saith not.
S. NJ. Kaauka.;:, Defendant"
After hearing, the Court den!Hc~C.
the motion, and the defendant ap-
naale6 against this ruling to the
Eircoi. Cont of the First Judicial
Circnit Jury wa;-ed). On the 9th
day of June, 1894, the matter came
on hearing and now comes mere on
bill of exceptions from the said CIR
cult Court, wherein it is stated -
'.That after hearing argument by the
respective counsel as to the sufficien-
cy of refusing to open such default,
the Court ruled that the appealing
on said motion to open default
should be declined aud 50 ordered, to
which ruling and order defendant
duly excepted, and his exception was
duly allowed"
TIE facts of the case as they ap-
pear to US, are: that the defendant
was served with a written notice,
that the case would be heard in the
District Court. Honolulu, on Friday
March 23rd, 1894 at / 80 P. M. That
day was Good Friday, aud the Court,
at the morning session, stated that
all civil cases that were ready would
be beard that afternoon, that being
the regular day; that the main door
to the Station House building, In
which is situated the District Court
Room, was closed for some reason,
which the Court Room could be
ing to the building about 1:30 P. NJ,
fonpd the main door closed and
ordered it TO be opened and proceed
ed upstairs to his Court Room.
That when tits case was reached de-
fendaut did not appear, and was
called In the usual way, and not
l.f-
not appear that the defendant made
any effort TO find out If the Court
was going to hold the afternoon ses
sion, which be could easily have
done, but fiDdipg the main door of
the building closed (not the Court
Room door,, about the time the
Court was to open, took 1T for grant
ed that there WAS no session, he hav
ing heard that there was to be half
holiday.
In Ct. w. Macfarlane & Co, vs.. j.
S. McCandless, Haw. lis, where
several of our own cases are cited in
support, it is held that the settip g
aside of a default and the RS openip g
of a case for re-hearipg Is IA matter
of discretion and not renewable, ex
cept In q clear case of abuse. There
Is nothing ueNelOpeu III tDlS Case to
warrant us in finding that there was
an abuse OF discretion by the magis
trate; the affidavit does not ever
show that the defendant had gooC
and meritorious defence to the
action; or that he used ordinary dill
pence in finding out whether his case
was to be postponed or heard on tn,
day set for hearing 1t is not enough
that he presumed from what h'
heard or observed, that it would no
be called; he should have made en-
uniries from the proper officers
The affidavit does not show thu
source of his information.
The exceptions are dismissed.
V. V. Ashford aud E. Johnson To-
plaintiff; w. G. Achi for defendant.
uolnI,s Lime 27 1894