Goo v. Fat

• Decision Date: 17 March 1937
• Docket Number: NOS. 2205 AND 2206.,S. 2205 AND 2206.
• Citation: 34 Haw. 123
• Parties: ERNEST E. GOO v. HEE FAT.
• Court: Hawaii Supreme Court

34 Haw. 123

ERNEST E. GOO

v.HEE FAT.

NOS. 2205 AND 2206.

Supreme Court of the Territory of Hawai‘i.

Argued January 12, 1937.

Decided March 17, 1937.

OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT FIRST CIRCUIT. HON. N. D. GODBOLD, JUDGE.

Syllabus by the Court

It is a rule of common law that the jurisdiction of a court over its judgments terminates with the close of the term at which they were rendered but there are exceptions to this general rule.

At common law a person convicted of an infamous crime was barred from giving evidence in a court of law. In this jurisdiction the common law rule has been modified by statute (see R. L. 1935, § 3823). Under this statute a person convicted of the crime of perjury or subornation is deemed insensible to the obligation of an oath and therefore incompetent to testify; the statute prescribes a rule of evidence which may not be modified or annulled by executive order.

An order of court made without jurisdiction is appealable.

A party acquiescing in and accepting the benefits of a judgment waives his right to appeal therefrom.

An order dismissing an action made contrary to the provisions of section 4107, R. L. 1935, is void.

D. G. Ridley ( Smith, Wild, Beebe & Cades on the briefs) for plaintiff.

J. G. Anthony and S. Landau ( B. S. Ulrich, F. Patterson and Robertson, Castle & Anthony on the briefs) for defendant.

COKE, C. J., BANKS, J., AND CIRCUIT JUDGE METZGER IN PLACE OF PETERS, J., DISQUALIFIED.

OPINION OF THE COURT BY COKE, C. J.

The above causes involving identical questions both of law and of fact have been consolidated by stipulation of parties and will be dealt with here accordingly. In the month of May, 1918, Ernest Goo, the plaintiff, plaintiff in error, instituted two actions in assumpsit against Hee Fat, defendant, defendant in error. The defendant answered denying generally all of the allegations of the complaints and gave notice of his intention to rely, among other defenses, upon fraud. No demand for trial by jury was made. The record discloses that following the filing of the answers, the causes were wholly neglected by both parties and remained in a state of suspended animation for twelve years, that is until the month of October, 1930, at which time plaintiff appeared in court and moved the causes on for trial. After further delay the causes were finally tried on June 1, 1931, at which time the plaintiff and his counsel were present but there was no appearance by defendant in person or otherwise. The court proceeded to hear the cases ex parte and following the introduction of plaintiff's evidence rendered judgments against the defendant for $9895.63, the full amount of the combined claims with interest. Judgments were docketed the same day. On January 13, 1932, and after the term of court at which the judgments were rendered had expired, plaintiff caused executions to issue on the judgments. Upon learning of this the defendant filed motions to reopen and vacate the judgments. The motions are supported by affidavits of Mr. Ulrich of counsel for defendant and aver that neither the defendant nor his counsel had notice of the ex parte trials which took place on June 1, 1931; that the judgments were obtained through fraud practiced upon the court by plaintiff and that they were supported solely by the testimony of one Goo Wan Hoy, a person theretofore convicted of the crime of perjury in the circuit court of the first judicial circuit who was under the law incompetent to testify in any proceedings in any of the courts of the Territory. Defendant further alleged that he had no knowledge of the entry or existence of the judgments in question until after the issuance of execution in January, 1932, at which time the 1931 term of the circuit court had expired. After lengthy hearings and on March 2, 1932, the circuit judge entered orders vacating the judgments but upon certain terms and conditions, namely, that the defendant pay plaintiff on or before April 8, 1932, the costs taxed at $12.50, the plaintiff's costs of publication of notice of execution amounting to $70.63 and further pay to plaintiff's attorneys, Messrs. Smith, Wild and Beebe, an attorneys' fee in the sum of $25 and finally that at the retrial of said causes the defendant should rely solely upon the defenses of forgery and fraud. We think it may be fairly and naturally inferred from the record that the defendant paid to the plaintiff or his attorneys the several sums mentioned in the orders.

On April 13, 1932, the parties entered into a stipulation agreeing that the retrial of the causes be continued to May 17, 1932. For reasons not disclosed the case was again neglected by all parties until March 6, 1933, at which time plaintiff filed a motion to set. Nothing appears to have been done about this motion and on July 24, 1934, plaintiff again renewed his motion to set. On September 24, 1934, plaintiff caused subpoenas to issue requiring the appearance in court on his behalf of numerous witnesses on September 26, 1934. For some reason no trial was had at that time and on October 2, 1934, the defendant moved to dismiss plaintiff's complaints for lack of prosecution. After hearing was had the circuit judge granted the motions and dismissed both actions for want of prosecution.

Following the orders of dismissal the causes have been removed into the supreme court by writ of error sued out by plaintiff. For fear apparently that something of value to him might escape plaintiff specifies twenty-seven separate assignments of error as the grounds for reversal. In his brief, however, he abandons all of these with the exception of assignments numbers 1 to 6, and 20 to 27. Further summarizing the plaintiff urges two errors, namely, (1) that the order dated March 2, 1932, vacating the judgments of June 1, 1931, and all decisions and orders of the circuit court entered after June 1, 1931, are void and (2) that assuming the court had jurisdiction to vacate the judgments of June 1, 1931, the court was without jurisdiction, power or authority to make the order of January 3, 1935, dismissing the cause and that such order was contrary to law. The plaintiff argues that the order of March 2, 1932, vacating the judgments rendered on June 1, 1931, and all subsequent orders are void because the court's jurisdiction over the cause ceased with the expiration of the 1931 term of the circuit court, citing in support of this position Su Wai v. Soper, 8 Haw. 184; Holiona v. Kamai, 24 Haw. 638; Rhoades v. Maciel, 25 Haw. 579; Silva v. Hind-Clarke Dairy, 33 Haw. 432;United States v. Mayer, 235 U. S. 55; 15 R. C. L. 678. In Rhoades v. Maciel, supra, this court said: “The entire proceedings had subsequently to the October 1918 term were null and void. It was one of the earliest doctrines of the common law that the record of a court might be changed or amended at any time during the term of the court in which a judgment was rendered, and now as then the general power of a court of record over its own judgments, orders and decrees during the existence of the term at which they are first made is undeniable. But it is also a rule of the common law that the jurisdiction of a court over its decrees terminates with the close of the term at which they were rendered, and a judgment may be amended or corrected only at the term during which it was entered and not thereafter.” But in the decision it was pointed out that there are certain well-defined exceptions to the foregoing rule. These exceptions may be summarized as follows: (1) where the subject is governed by statute, (2) the correction of a clerical error, (3) where the judgment has...