The Hawaiian gazette., 1894-07-03
OPINION OF THE COURT BY B1cKERToN.

OPINION OF THE COURT BY BIcKERToS. J..
This case was brought in the Dis
trict Court of Honolulu, and iudg-
ment in default was entered 10 favor
OF the plaintiff; few days after
wards defendant moved the Court to
set aside the default aud re open the
case, based on the following
affidavit:
Nov comes S. NJ. Ksaukai 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 wss shut, so
the defendant believed bis informa
ton; and that's why he did not come
before the Court, aud deponent
further saith not.
.. M haaukal, Defendant"
After hearing, the Court denied
the motion, aud the defendant ap-
pealed against this ruling to the
Circuit Court of the First Judicial
Circuit Jury waivedl. Ga the 9Th
day of jane, 1894, the matter came
on hearing and now comes here on a
bill of exceptions from the said Cir
cult Conrt, 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 and 50 ordered, to
which ruling and order defendant
duly excepted, and his exception was
duly allowed"
The 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 1:30 P. NJ. That
day was Good Friday, and the Court,
at the morning session, stated that
all civil cases that were ready would
be heard 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,
but there was another entrance by
which the Court Room could be
reached. The Magistrate, on com
ing to the building about 1:30 P. NJ,
found the main door closed and
ordered it to be opened and proceed
ed upstairs to his Court Room.
That when this case was reached de-
fendant did not appear, and was
called in the usual way, and not
answering was defsultsd. 1t does
not appear that the defendant made
any effort to find out if the Court
was going to hold the afternoon SEES
sion, which he could easily have
done, but finding the main door of
the building closed mot the Court
Room door,, about the time the
Court was to open, took it for grant
ed that there was no session, he hav-
ing heard that there was to be half
holiday.
In G. W. Macfsrlane & Co, VS.. j.
S. McCandless, 8 Haw. 118, where
several of our own cases are cited in
support, it is held that the setting
aside OF default aud the re opening
of case for re-hearing is a matter
of discretion and not renewable, ex
cept in clear case of abuse. There
is nothing developed in this case to
warrant us in finding that there was
an abuse OF discretion by the magis
trate; the affidavit does not even
show that the defendant had a good
and meri,orious defence to the
action; or that he used ordinary dill
gence in finding out whether his case
was to be postponed or heard on thu
day set for hearing It is not enough
that he presumed from what he
heard or observed, that it would not
be called; he should have made en-
1uiries from the proper officers.
The affidavit does not show the
source of his information.
The exceptions are dismissed.
Wv. Ashford and E. johnson for
plaintiff; W. G. Achi for defendant.
HopolnIn lima 81 1904