Takamoto v. Horita

• Decision Date: 03 July 1916
• Docket Number: No. 944.,944.
• Parties: KOTARO TAKAMOTO v. TSUNE HORITA.
• Court: Hawaii Supreme Court

23 Haw. 370

KOTARO TAKAMOTO

v.TSUNE HORITA.

No. 944.

Supreme Court of the Territory of Hawai‘i.

Argued June 27, 1916.

Decided July 3, 1916.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT. HON. T. B. STUART, JUDGE.

Syllabus by the Court

The statute, R. L. 1915, Sec. 2363, authorizing the opening of defaults, should be liberally applied by the courts. On appeal the question is whether the trial court abused its discretion. Good and sufficient reasons for opening a default will not be shown to exist unless it be made to appear that the defendant moved with diligence after the default was entered, that he has a meritorious defense, and that he has a reasonable and satisfactory excuse for not having answered.

Where a final judgment has been entered in a case after an order of default the application should be to set aside the judgment as well as to open the default.

C. S. Franklin ( Thompson, Milverton & Cathcart on the brief) for plaintiff.

J. Lightfoot for defendant.

ROBERTSON, C.J., WATSON AND QUARLES, JJ.

OPINION OF THE COURT BY ROBERTSON, C. J.

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 denial 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 plaintiff, and judgment accordingly was entered; thereafter, on the same day, the defendant filed a motion to set aside the default; and on March 11, the motion was denied. In her affidavit filed in support of the motion the defendant set up by way of defense upon the merits to a part of the plaintiff's claim that the claim included usurious interest. By way of reason or excuse for not having answered within the time limited in the summons the defendant deposed that immediately after service of summons upon her she had an interview with the plaintiff with the view to securing a reduction of the claim, particularly in the matter of interest; that thereafter, on four or five occasions, she had further interviews with the plaintiff and his agent with a view to compromising the claim, and, on January 25, believed that it would be possible to obtain a compromise, and therefore did not consult an attorney; that at an interview on the morning of the last mentioned date the plaintiff consented to a reduction of the amount of interest which the defendant agreed to take under consideration, but that on the afternoon of that day she learned that the plaintiff had secured judgment against her, whereupon she consulted her attorney; that she is a Japanese woman who does not understand the English language, is unaccustomed to legal proceedings, and did not know that it was necessary for her to file an answer while negotiations for a compromise were in progress; and that, though able and willing to pay the plaintiff whatever is legally due him, she is unable to pay interest at the rate of two per cent. per month which, as she says, the plaintiff claimed. It is evident that the defendant fully understood that the plaintiff had commenced an action in court against her, and that in order to defend the case it was incumbent on her to make answer. The most that can be made of the affidavit, aside from the fact that she had a defense to a part of the plaintiff's claim, is that through ignorance on the part of the defendant she supposed that pending the negotiations which she started she need not answer in court. But she sought no advice. She does not claim that the plaintiff intended to deceive or defraud her, and according to her statement she did not conclude that a compromise was possible until thirteen days after the order of default had been entered. The record does not show, but counsel agreed at the argument, that the plaintiff asked leave to rebut the statements made in the defendant's affidavit. The circuit court held, however, that the showing made was insufficient without its being rebutted.

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...