The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-11-09

OPINION OF THE COURT BY JUDD, c. J
This is the second Bill in Equity 10y
the defendant in suit at law, to va
cate the judgment against him and t
enjoin its collection.
The bill alleges in substance that il
the suit at law the defense of the stat
ute of limitations which was pleaded
was inadvertently omitted TO be passed
! upon by the Justice who heard the
case, the jury being waived, and that
| the cause of action was barred by the
statute of limitations of six years and
| that the omission and failure of the
| Justice to rule upon and decide the
said issue so made was due to no fault
or negligence Of the plaintiff or his
attorney; that no appeal at law lay
| from the said omission or failure of the
said Justice to rule upon or decide the
issue on the legal effect of the statute
of limitations, inasmuch as no ruling
had been made and so no exception
could have been taken.
The bill prays that the judgment be
vacated because barred by the statute
of limitations, and that the collection
of the judgment be enjoined.
The defendant demurred to the bill
as disclosing no equity.
The ground claimed for equitable
relief, is, concisely stated, the omis-
sion of the Justice who heard the case
to pass upon and decide whether the
action at law was barred by the stat
ute of limitations. The affidavits
show that the Justice did not pass
upon nor decide the issue raised by this
plea, and that counsel of plaintiff (the
defendant at law did not present nor
argue the question, nor ask of the
Court for finding upon it.
The precise question before US is,
whether a defense of legal nature,
omitted to be passed upon and decided
by the law Court and not brought to
the notice of the Court, and upon
which no finding was requested, is
good ground for equitable relief.
Pomeroy says it is not. We quote
from Pom. Eq. Jur., Sec. 1851:
Equity will not restrain legal ac.
ton or judgment, where the cOntro-
versy would be decided by the court
of equity upon a ground equally avail
able at law, unless the party invoking
the aid of equity can show some
CDCClal CINttuOtt lCdlu1C VI SlOuhu
of relief; and in the case assumed this
special feature or ground must neces-
sarily be something connected with
the mode of trying and deciding the
legal action, and not with the cause of
action or the defense themselves. 1t
is not such a special equitable ground
of interference that the party has, by
his own act or omission, failed to eff
fectually avail himself of valid de-
Tense at law, nor that the court of law
has decided a question of law or of
fact enormously. The principle is
well established and is universal in its
application, that when a cause belongs
to the jurisdiction of the law courts,
equity will never interfere to restrain
the prosecution of the action, nor to
stay proceeding on the judgment or
execution, upon any mere legal
grounds, although it may be demon
strated that the complainant in equity
generally the defendant at law had
a valid legal defense, which was not
made available, either through the err
rOr of the court in determining the |
law or the facts, or the omissions of |
himself or his counsel in presenting it |
or in obtaining the evidence by which |
it could have been supported"
Note l on page 395. ut is imma- !
terial whether the question or matters I,
relied upon by the complainant in
equity was considered by the law |
court or not. Omission TO present or
make out defense at law is not a
ground for equitable relief"
In Dayv. Cummings, 10 VT. 500, the
Court, per Redfield, j., say: at has
always been held, that any defense,
which might be interpOsed at lar to
defeat the recovery, or portion of it,
must be so interposed, or it is con-
cluded by the judgment"
In Simpson V. Lord Howden, IA
Eng. Chan. Repts., los, it was held by
Lord Chancellor Cottenham: THAT
party has not effectually availed him
self of defense, or that Court of law
mas enormously decided a point of
pure law is no ground for equitable
In 1907 Lord EldOn said in Ware V.
IA Yes, 81, "Giblett has
had an opportunity of defending him
'elf at law; and in fact a judgment
vas recovered against him; and, /
agree, generally speaking, that a jur-
sdiction does not arise here from the
mere circumstance that party has
omitted to make proper defense at
aw."
In Hungerford V. Siegerson, 20 How,
81, the Supreme Court of the United
States say: Where a party has failed
o make a proper defense at law
through negligence, equity will not
lid him."
The defense of the statute of limita-
ions is legal defense. 1t was not
passed upon by the trial Court, be-
,ause it was not argued and the Court
vas not asked to decide it. 1t is not
to charge counsel with neg
igenee in not bringing the matter to
he attention of the Court, for counsel !