Kahue v. Palaualelo
| Citation | 25 Haw. 805 |
| Decision Date | 08 March 1921 |
| Docket Number | No. 1309.,1309. |
| Parties | M. KAHUE v. KAHUE PALAUALELO, AND JOE CARILLO, AS GUARDIAN AD LITEM FOR LUKA CARILLO, A MINOR. |
| Court | Supreme Court of Hawai'i |
OPINION TEXT STARTS HEREMOTION TO DISMISS APPEAL.
Syllabus by the Court
A party may not as a matter of right appeal from an order refusing to grant a motion to open default.
A appeal from an interlocutory order must be allowed by the judge of the circuit court as provided for in Sec. 2508 R. L. 1915, and in the absence of such allowance the appeal will be dismissed on motion.
E. Vincent and J. W. Kalua for the motion.
Wendell F. Crockett and E. R. Bevins contra.
The 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 with process, failed to answer within the prescribed time and upon motion of the petitioner an order was made by the circuit judge declaring him in default. Subsequently the appellant interposed a motion supported by affidavits 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 with process in an equity 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.
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...
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Stafford v. Dickison
...was commenced in July 1959, and we will assume this to be the case. We first will consider the nature of the present appeal. In Kahue v. Palaualelo, 25 Haw. 805, it was held that an order denying a motion to open a default was interlocutory and not subject to appeal as a matter of right, an......