The Hawaiian gazette., 1907-02-08
DEFENSE
DEFAULT STANDS

: the Supreme Court gave a decision in
favor OF plaintiff In the suit of Harry
T. Mills against John S. Walker.
Plaintiff sued defendant on claim Of
l.. B. Kerr & Co., Ltd, assigned to
plaintiff. for s54 for goods sold to de-
fendant. w. G.. Irwin &c CO.. Ltd, sued
as garnishee, was discharged on No
! vember 2S. on November 30 the de-
murrer of defendant was overruled and
his attorney moved to dismiss the ac-
ton on the ground that no copy of
the summons had been served on de-
fendant. on December 8. to when the
case had been continued, defendant
not appearing was declared in default
and, on hearing the evidence of
plaintiff. the magistrate gave judgment
for plaintiff for the sum claimed with
interest, attorneys commissions and
costs amounting in all to $S1.S3. De-
fendant appealed to the Circuit Court,
which granted plaintiffs motion to dis
miss the appeal because taken from a
judgment in default.
In overruling the exceptions of de-
fendant, Justice Hartwell, writer of the
opinion. says the demurrer must be
regarded as a general appearance in
volving waiver of service Of a copy
of the complaint. The motion to dis
miss on the ground of defective SER
vice was not the kind of motion which
would have entitled the defendant upon
| its denial to a further continuance If
he had been present on the day set and
then learned of its denial. To give
such effect to motions of that kind
would involve a magistrates court In
useless and annoying delays. The
plaintiffs evidence was therefore prop
erly heard ex parte. If instead of ap-
pealing from the judgment the de-
fendant had moved to have the default
set aside on the ground that he did
not owe the bill, or that the claim had
not been properly assigned, and had
appealed from denial of the motion,
| it is possible that the default would
have been ordered to be set aside on a
| showing of a defense which would be
made If the case were reopened, but
an appeal from the judgment waving
| the right to have the default set aside
5ustifles the inference that there was
no defense upon the facts"
The statute is quoted to show that
the magistrate was right in ordering
judgment by default, and the decision
of Luce v. Chin Wa in 5th Hawaiian
to show that 1.-The reasons, IL any ex-
list, for the removal of default should
be presented to the court which has
ordered It,"
A. S. Humphreys for PLAINTIFF; G. A.
Davis for defendant.
THE TABLES TURNED.
Annie Wong Mau had the tables
sadly turned on her in the divorce
proceedings she started against Wong
Mau. The husband brought cross
bill, setting up his wifes unfaithful-
ness in opposition to her charges
against him of extreme cruelty. Judge
Lindsay concluded the trial yesterday.
granting a divorce to Wong against
Annie for the cause stated. G. D.
Gear represented the wife and w. w. |
Thayer the husband.
RELEASED FROM JAIL.
NJ. P. Lugan, who was fined $500 and |
costs of court for embezzlement from
the Oahu Railway & Land Co. and |
went to jail to work out the penalty,
was discharged yesterday by order of
Judge Lindsay on taking an oath that
he had no means of paying the balance.
This was on motion of C. w. Ashford
as the prisoners attorney, which set
forth that Lugan had served one year
and day in Jail.
WATER INJUNCTION.
Clinton w. Crandell has brought an
injunction suit against Edward r. Bath
to restrain him from maintaining a
rock and cement embankment on his
lnI. ,l,ta I,A- t1I
storm waters from their natural course
and turned them upon the premises of
plaintiff. Damages Of $780, with costs,
are claimed for injuries to plants, ETC.,
caused by such diversion of waters in
the storms of last month. A. G. NJ.
Robertson is attorney for plaintiff.
VARIOUS APPEALS.
Hawaii Land Co., Ltd, has appealed
to the Supreme Court from judgment
against it and in favor of Jas l.. Holt,
tax assessor, for s24S6.99, on the ground,
as stated by its attorney, w. C. Achi,
that this court has no jurisdiction in
this case, as the amount involved in
the suit is more than three hundred
dollars and partly based on judgment
rendered by this court and the amount
VI eio Jtuoi'Sht 10 ihoic si'Hh sAAASS |
dollars
Appeals from District Magistrate
have been sent to the Circuit
Court in the following cases:
Territory V. All Chong. selling liquor
to minor in a licensed saloon, de-
fendant fined $50 and costs.
Territory V. Maruta, larceny in the
second degree in stealing watch chain
of the value of 20 cents from Chew
Kee, defendant sentenced to be impris-
oned ten days and to pay costs.
n. ]. Louis V. Lazaro Salamanca:
County Auditor Bicknell, garnishee;
suit for s6735 for meals furnished to
wife and children while he
was absent as a member OF the band
in the States; plaintiffs appeal from
Judgment for defendant with 1918 at
torney's commissions.
KAPIoLANI TRACT CASE.
In the equity suit of James l.. Holt.
tax assessor. to enforce a tax lien on
the Kapiolani tract against w. c. Achi
and others. James F. Morgan. one OF
the respondents, has filed his answer.
1t is in terms similar TO the answer