W. Nat'l Bank v. W. C. Peacock & Co.
| Decision Date | 14 December 1906 |
| Citation | 18 Haw. 161 |
| Parties | WESTERN NATIONAL BANK v. W. C. PEACOCK & CO., LTD. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT.
Syllabus by the Court
Want of consideration to an acceptor of a bill of exchange is not a defense to an action against him by the payee if the latter paid a consideration to the drawer.
Under the statute which prohibits the filing of an answer, in an action by a payee against an acceptor of a bill of exchange, unless accompanied by an affidavit stating some substantial ground of defense, the judge at chambers may treat as a nullity an answer, if filed, even though accompanied by an affidavit, if the latter is insufficient, and may order judgment by default; it is unnecessary for the court, as distinguished from the judge at chambers, to pass first upon the sufficiency of the affidavit.
Exceptions or error, not appeal, is the proper method of bringing up a judgment by default entered in a circuit court case although ordered by the circuit judge at chambers.
Castle & Withington for plaintiff.
C. W. Ashford for defendant.
This is an action by the payee against the acceptor of a bill of exchange for $1748.56. The bill was drawn by the Hilbert Mercantile Co. at San Francisco November 4, 1905, payable to the plaintiff, a national bank of San Francisco, and indorsed accepted by the defendant, a Hawaiian corporation, December 23, 1905. It was payable six months after date and, default having been made in payment, this action was begun July 21, 1906. The defendant filed an answer of general denial with notice of intention to rely on want of consideration, and an affidavit that it had a good, valid and meritorious defense for the reason that it had never received any consideration for the bill of exchange, and that it was not legally or morally indebted to the plaintiff upon the same. The circuit judge at chambers held the affidavit insufficient, ordered it and the answer struck out, and ordered judgment by default for the plaintiff. The defendant appealed.
The affidavit was insufficient unless it stated some substantial ground of defense. The mere fact that the defendant, the acceptor, had never received any consideration for the bill of exchange was not a substantial ground of defense, for there might have been a good consideration as between the drawer and the payee, who is the plaintiff. Arpin v. Owens, 140 Mass. 144. And an affidavit of defense which merely states that the acceptor of a bill or indorser of a note had not received a consideration is insufficient. Superior National Bank v. Stadelman, 153 Pa. St. 634. But the defendant contends that so long as an answer and affidavit were filed, whether sufficient or not, the circuit judge at chambers was without jurisdiction to order a default, or, to put it differently, that the question...
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