27 Haw. 835 | Haw. | 1924
OPINION OF THE COURT BY
This is a suit in equity for the foreclosure of two mortgages given to the petitioner by one of the respondents, for the setting aside of a judgment of summary possession terminating a lease which was subject to one of the mortgages and for other relief. Tsunoda, the mortgagor-respondent, made no appearance. The other respondents filed answers, without demurring. The cause proceeded to trial. After examination of witnesses for
“1. Upon the allowance of the amendment to paragraph XIX of the bill of complaint did the respondents have the right to demur to the entire amended bill of complaint they not having demurred to the original bill?
“2. Did the court err in allowing said demurrers to be filed?
“3. Should the demurrer of Y. Ahin to the amended bill of complaint be sustained upon any of the grounds stated in said demurrer?
“4. Should the demurrer of K. Tanaka and K. Miyata to the amended bill of complaint be sustained upon any of the grounds stated in said demurrer?”
It is contended by the respondents that under our statute the trial court was without power to reserve for the consideration of this court the question of whether or not the respondents had a right to demur after answer for the reason that the court had already ruled upon the point in favor of the respondents and by such ruling showed that it was free from doubt upon the issue of law thus attempted to be reserved. Act 47, S. L. 1919, amending sections 2511 and 2512, R. L. 1915, provides that “whenever any question of law shall arise in any trial or other proceeding before a circuit court or circuit judge in chambers or the land court, the presiding judge
The next question is whether the respondents had a right to demur at the time and under the circumstances when the demurrers Avere filed. The general rule is that the proper time for demurring is before answering to the merits. To this rule there are certain exceptions. One is that the jurisdiction of the court over the subject-matter of the suit may be attacked at any time, by demurrer or otherAvise. Another well established exception is that
That the objection of multifariousness is waived by a failure to demur before answer, see 8 Ency. U. S. Sup. Ct. Rep. 536; 21 C. J., Sec. 470, p. 437, and Sec. 452, p. 425; and Story’s Eq. Pl. (8th ed.) Sec. 453. The nature of the bill in this case was not changed by the amendments made in paragraph XIX and therefore the fact of the making of the amendments could, not of itself justify the filing of the demurrers after answer. 1 Ency. Pl. and Pr. 491.
This is primarily a bill to foreclose two mortgages, a subject-matter very clearly within the cognizance of a court of equity. Of the parties, it is not doubted, the court had jurisdiction. The bill alleges the execution and delivery by the respondent Tsunoda of the two mortgages in consideration of loans of money and that the respondent is still indebted to the complainant under the mortgages and prays for a foreclosure of the mortgages. This is a statement of the essentials of a cause of action against Tsunoda. A statement of the amount due under the mortgages is unnecessary. It is one of the well recognized functions of a court of equity to ascertain the precise amount due and to decree accordingly.
So also a cause of action against the respondent Ahin is sufficiently stated. It appears from the allegations of the bill that Ahin demised a certain piece of land to Tsunoda for a term of years on a stated rental and that, with the written consent of Ahin, Tsunoda assigned this lease to the petitioner as part of the security for the loans above mentioned, this assignment being included
The bill also alleges that after securing the judgment at law and possession thereunder of the property, Ahin executed a lease of the same premises to the respondents Miyata and Tanaka and that “said purported lease last mentioned was accepted and entered into by said K. Miyata and K. Tanaka with notice and knowledge on their part of said mortgage and of the rights of said Honolulu Plantation Company,” the petitioner. It may be that this statement as to what the respondents Miyata and Tanaka at the time of accepting the lease had notice and knowledge of is somewhat ambiguous and uncertain; but the objection, if any, was certainly curable by amendment and clearly belongs to that class which is waived by a failure to demur before answer. The statement that these two respondents when they accepted the lease had notice and knowledge of “the rights” of the petitioner
In Rumsey v. N. Y. Life Ins. Co., 23 Haw. 142, 149, this court said that when, as in that case, “the reserved question is whether a demurrer to a bill in equity should be sustained and the points involved are complicated and the facts are not as fully and clearly set forth as they might be made to appear, and the bill would probably be amended should the demurrer be sustained, * * * this court ought not to be expected to answer the question, but should return it for decision by the judge who reserved the question.” The statute, of course (R. L. 1915, Sec. 2512, as amended by S. L. 1919, Act 47), expressly provides that this court “may, in its discretion, return any reserved question for decision in the first instance by the circuit court or judge or land court.” The reservation of a question does not always and necessarily tend to a more speedy termination of the litigation. •Whether it does or not depends upon all of the surrounding circumstances. When as in the case at bar the proposal is made in the midst of a trial after much of the evidence has been adduced, other forcible reasons must exist in order to justify the interruption of the trial with its consequent disadvantages not only to the attorneys,
The answer to the first question reserved is that the respondents had the right to demur, as they did, upon the grounds of lack of jurisdiction and absence of a cause of action. The second question is answered in the negative. The answer to the third and fourth questions is that a cause of action is set forth in the bill against all of the respondents and that the other grounds of demurrer have been waived.