23 Haw. 370 | Haw. | 1916
OPINION OF THE COURT BY
This is an action of assumpsit in which the plaintiff obtained judgment in the court below after default by the defendant. The defendant brings an exception to the de-. nial of her motion to reopen the order of default. The situation may be stated as follows: On December 20, 1915, summons was served on the defendant; on January 9, 1916, the time for answering expired; on January 12, plaintiff’s motion for an order of default was filed, and an order thereon made and entered; on January 25, the case was heard, jury-waived, upon the plaintiff’s proofs; on January 28, the court filed its decision in favor of the plain
The circuit court was authorized, under the statute, in its discretion and for “good and sufficient reasons” to open the default. R. L. 1915, Sec. 2363. The statute is broad and should be liberally applied by the courts. Bond v. Hawaiian Gazette Co., 22 Haw. 60, 64. There is a discretion in the court to whom the application is made and though this court will reverse an order either granting or denying a motion to open a default where the discretion has been abused (Ayers v. Mahuka, 9 Haw. 377; Bond v. Hawaiian Gazette Co., supra), the question on appeal is not whether this court would have taken certain action originally, but whether there was an abuse of discretion on the part of the trial court. Tibbets v. Pali, 14 Haw. 517; Kapiolani Estate v. Grinbaum, id. 583; Byrne v. Orpheum Company, 16 Haw. 786. It is said that it requires a stronger showing to justify the interference of an appellate court when a default has been opened than when an opening has been denied. When the defendant in a law action fails to answer as required by statute or rule of court the plaintiff is entitled to demand and receive an order declaring the defendant in default. R. L. 1915, Sec. 2361. Good and sufficient reasons for opening the default will not be shown to exist unless it be made to appear that the defendant moved with diligence after the default was entered against
It may be well to point out that the defendant’s motion, which was merely to set aside the default, was defective. In a case where, as here, a final judgment has been entered, the application should be to open the default and set aside the judgment since the mere opening of the default without also setting aside the judgment would not effect the desired purpose.
The exception is overruled.