The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-02-14

Of law reversed upon error in law b,
shown In New Jersey it has been held that the reinstatement
OF appeal which has been dismissed for failure of the anne
liant appear matter of law and of discretion Hopeu
o. Van Ness, 81 N. j. L. 443, AS In Illinois the oppoa
view has been taken Pd,ton Nanley 80 III. 45s AGO.
Hinckley q. Dean 1O4 Ill. 63o 6as.
If the present belonged the class there wac
in opinion abuse of discretion dismissng the
considering all the circumstances and especially the fact that
the case was called and the appeal dismissed three hours before
the time set for hearing So far make the trial
Judge acted on the discretion theory in dmsng the appeal
and on the law theory in denying reinstatement
But assuming that dismissal and ordinarily
matters of discretion evident that the circumstances par
cular be such leave little for the
exercise OF discretion that the action of the court will ba
clearly right whether proceed the theory dis
creton, that of law and in my opinion this is one
OF those cases The appellant did make default or fail 10
appear He appeared and DESTROYS prosecuting his
appeal but merely informed the that was not ready
the appellee who the plaintiff having already informed the
court that be, Also ready The very much like
that of Langehdm Stickney 80 ILL., $751; in which court
SAID 1T then appears from the bill of exceptions that because
defendant not ready for trial. the court dismissed his appeal
Tor want OF prosecution. That The appeal had
been perfected under the statute the trial
other the calendar Defendant had abandoned his
appeal but prosecuting well he could in his
way He may have been entirely ready trial. but
that is why his appeal should be dismissed All the
court could do properly to order the trial proceed
whether the defendant ready As the
to be tried de the appeal it could be known deen
dant would be ready his defense
by the time plaintiff should finish his side of the Whether
he had defense to make, he could compel plaintiff the
appeal prove of action against him. and
to dismiss defendants appeal without allowing him trial. See
also Laacler Gordon, 81 Ill 6o2, 6o4 Upon this there
to be difference of opinion between the New jersey
and Illinois See also Reed Recap, N j. L. 347
$50; Lam 4. Price, 16 N. j. L. 1885,
Taking all the New Jersey and Illinois this subject
together and merely the New Jersey cited by the
Circuit Court its decision overrung the second notion and
the Illinois cited by counsel do find that the
courts of those Stakeholder greatly the proper practice
appeal In each the appeal bond substantially the
requiring the appellant prosecute his appeal each the trial
appeal trial de nouo in each the judgment below is
vacated not by the appeal but by the Judgment above
In each it to dismiss the appeal when the defendant
appellant appears in each it general proper to dismiss
when the defendant appellant does appear Those courts
differ to whether reinstatement and perhaps dismissal also
discretionary not when the appellant fails to appear
We have previously reversed the order dssng the appeal
and therefor These apply to
each of the other four similar cases. the order dsmng the
appeal In each of which has been previously reversed
i. A. NagOon and L. AZ. Long for plaintiff
Robertson G Wilder for defendant.