The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-04-05

the Judgment entered on the verdict
OPINION OF THE COURT BY JUDD, CD.
On the 25th May, 1894, the defend
ants in error obtained verdict
against plaintiff in error for $500.
days later. The plaintiff in error
took certain exceptions to this Court
which were heard at the last Septem-
Der term and decided adversely to
him, October 18th. On the 18th
December q writ of error was sued
out, which came on for hearing at
this term: The defendants in error
moved that the writ be quasbed on
various grounds, the first one being
that the petition for the writ does
not contain an allegation that the
Judgment was not fully satisfied.
The plaintiff in error asked this Court
TO allow him to amend his petition
by inserting this allegation, 1t being
admitted that the judgment was not
in fact satisfied. We held in Bowler
v. Mcintyre, 9 Haw.-that cit
should be alleged in the petition that
The Judgment was not fully satisfied,
this being a statutory prerequisite
for the issuance of the writ" In
that case we refused to dismiss the
writ on the ground of the omission
of such an allegation because issue
had been joined on the merits,
though we would have dismissed the
writ If the record showed that the
Judgment had been satisfied. In the
case before us we think the amendment
should be allowed. Under the gen
eral power Of this Court to grant
amendments in matters where we
have original jurisdiction, We allow
It because it will not prejudice the
defendants in error-the object of
the amendment being to have the
petition correspond with the facts.
The third ground for quashing the
writ is that "the writ was not issued
within six months from the rendition
of the Judgment complained Of"
The petition does not contain an
allegation that the writ was brought
within the six months. Counsel for
plaintiff in error shows as follows: A |
demurrer was interposed by him |
January 20, 1894, before the trial in |
the Circuit Court, he having discon-
tinued his answer of the day previous. |
The demurrer was substantially q !
plea of misjoinder of the defendant
in errors husband. It was argued |
on the 25th May and overrdled and |
the case proceeded Immediately to |
trial Ut should be stated here that
defendant in error filed a plea of
general issue on the ed May.) |
When the exceptions were argued
before us the plaintiff In error asked
Us to consider the misjoinder of the
husband of defendant in error. We
found, October 18th (see Iaukea v.
8 Haw.-) that this
question was not cognizable before
as because the record did not show
that any exception was taken or
to the overruling the de-
murrer on that ground and was not
sent up in the bill of exceptions.
the plaintiff in error, on
the 9Th December, upon motion and
notice to opposing counsel, obtained
an order of the Circuit Judge pre-
siding at the trial that an amend
ment be made on the clerks minutes
rs of May Is. 1894, (tbe day of the
5rial) to wit, HThe demurrer having
been argued by the respective coun-
sell, and overruled by the Court, the
noted exceptions to the
Courts ruling" The counsel for
In error contends that as the
cause was still on the clerks docket
The Judgment was not final and
therefore the statutory period of
limitation of six months had not run.
We fail to appreciate the soundness
IF this proposition. The judgment
On the verdict was entered May rs,
1894; exceptions had been overruled
and there was nothing left to be done
% perfect the judgment. The writ
IF error was sued out on the 18th
December, nearly seven months after
he Judgment was entered The fail ;
Ire TO enter on the minutes the fact :
hat the demurrer was overruled and
hat exceptions were noted had no
effect to suspend or postpone the
Judgment. This failure was the
eason why the Circuit Judge dis
allowed an exception to his overrul- {
ng the demurrer and why 1T was not
in the bill of exceptions.
But the exceptor could have avsiled
himself then and there. when this
round of exception was refused, OF
he proofs that he thereafter on the
tn December presented to the Judge,
hat an exception had been in fact
oted and that the clerk had omitted
from his minutes by inadvertence.
f the question of the alleged mis-
binder had been sent up to us IN the
i'll of exceptions we would have
onsidered it, and. if the Circuit