Kahue v. Palaualelo, 25 Haw. 805

Kahue v. Palaualelo

25 Haw. 805 | Haw. | 1921

OPINION OF THE COURT BY

COKE, C. J.

Tlie petitioner-appellee instituted in the circuit court of the second judicial circuit a suit in equity to cancel a deed. The respondent-appellant, although duly served Avith process, failed to ansAver Avithin the prescribed time and upon motion of the petitioner an order Avas made by the circuit judge declaring him in default. Subsequently the appellant interposed a motion supported by affidaidts to open the default. From the decision denying the motion the appellant has appealed to this court. The petitioner now .presents a motion to dismiss the appeal on the ground “that this court has no jurisdiction to hear and determine said cause in that the consent of the trial court not having been first obtained there is no valid appeal from the interlocutory decision of the trial court.”

Where a respondent duly served Avith process in an *806equity suit fails, within the time required, to demur, plead or answer the usual and recognized method of procedure is for the petitioner to make application for a decree pro confesso and not as in law cases for an order of default. Whether that proceeding has been abolished by virtue of the language to be found in the last paragraph of section 2361 R. L. 1915 it is unnecessary for us to' decide for in any event the motion must be granted.

E. Vincent and J. W. Kalua for the motion. Wendell F. Crockett and E. B. Bevins contra.

The order denying the motion to open the default was clearly interlocutory and an appeal therefrom could not be prosecuted unless the same was allowed by the circuit judge as provided for in section 2508 R. L. 1915. In the present case the appeal has not been allowed by the judge of the circuit court hence the appellant has no standing here. A party may not as a matter of right appeal from an order refusing to grant a motion to open default or refusing to set aside a judgment by default. 6 Ency. Pl. & Pr. 231; Hitchcock v. Superior Court, 73 Cal. 295; Schlotfeldt v. Bull, 43 Pac. 33. In Bond v. Haw’n Gazette Co., 22 Haw. 60, an interlocutory exception was taken and allowed from the denial of a motion to open and set aside a default. This was in conformity with our statute and in harmony with the recognized rules of appellate procedure, at least so far as law cases are concerned.

The appellant will of course have an opportunity to present the matters now complained of to this court by appeal or error should the final decree herein be adverse to him.

The motion to dismiss the appeal is granted.