
    A-ONE BUILDING COMPANY, LIMITED, v. ARTHUR T. YEE.
    No. 2005.
    Argued May 25, 1931.
    Decided June 3, 1931.
    Perry, C. J., Banks and Parsons, JJ.
   OPINION OF THE COURT BY

PARSONS, J.

This case is before us upon plaintiffs interlocutory bill of exceptions to an order of tbe circuit court vacating judgment and setting aside default. The action was in assumpsit and to enforce a materialman’s lien under tbe provisions of section. 2895, R. L. 1925. Tbe declaration was filed February 12, 1930. Defendant’s answer, a general denial, was filed March 3, 1930. On Wednesday, September 24, 1930, at 9 A. M. tbe case was called for trial, tbe plaintiff responding but there being no further appearance by or on behalf of tbe defendant. Tbe defendant not appearing after being called three times in conformity with tbe court’s instructions, tbe case proceeded to trial by tbe court, jury waived, upon the evidence of tbe plaintiff. Upon submission tbe court found tbe material allegations of tbe declaration to have been proven satisfactorily and ordered judgment in favor of tbe plaintiff. A written decision and judgment in conformity therewith were filed September 29, 1930. Thereafter, on November 10, 1930, tbe defendant in propria persona filed a motion for an order requiring tbe plaintiff to show cause why said judgment should not be vacated and set aside and tbe cause set down for trial upon its merits. Attached to tbe motion was an affidavit of tbe defendant alleging in effect and among other things that defendant had received no notice personally, by mail or otherwise, of plaintiff’s motion of September 16 to set said cause for trial and bad not been notified of tbe trial and was ignorant of tbe same until after judgment had been entered. Said affidavit further alleged that defendant bad a complete defense to plaintiff’s claim of lien for tbe reason that neither notice of lien nor action to foreclose tbe same bad been given or filed within forty-five days immediately after tbe completion of tbe building in question. Order to show cause was issued upon said motion and, after a bearing of tbe same in which evidence on behalf of tbe defendant and plaintiff was taken, tbe court by order refused to set aside tbe judgment or to grant a new trial. Later, to-wit, on November 19, 1930, the defendant, in the meantime having engaged counsel, filed another motion entitled “Motion to Vacate Judgment and Set Aside Default” based upon the record and upon an attached affidavit to the same purport as that attached to the former motion. On November 24, 1930, counsel for plaintiff moved that defendant’s motion of November 19 be dismissed on the ground that it was not filed within the time allowed by law. After argument the court ordered that the judgment he vacated and the default set aside and thereafter allowed an interlocutory bill of exceptions to this court from said order.

In their opening brief counsel for plaintiff urge that “the second motion of the defendant entitled ‘Motion to Vacate Judgment and Set Aside Default’ was nothing more or less than a second motion for a new trial and the order entered herein has the effect of granting the defendant a new trial. There was no order of default to be set aside.” Counsel for plaintiff further urge that the ten days after judgment Avithin Avhich motion for new trial could have been made having expired long prior to November 19, 1930, the trial court was in error in entertaining and granting defendant’s said motion of that date. It is true, as claimed by the plaintiff, that there was no order of default to be set aside, hut the contention cannot be sustained that the motion last above referred to was therefore a second motion for a new trial or that the order issued thereupon has the effect of granting the defendant a new trial. The motion, omitting the part asking that the default he set aside, Avas “that so much of the judgment entered herein, foreclosing the-mechanic’s lien, be vacated.” Again omitting the part referring to the default, the order was “that the judgment heretofore entered herein be vacated.” It is a generally recognized rule of laAV that “all courts of record have inherent power to vacate or set aside their judgments or orders during the term at which rendered. This is a power of daily exercise by the courts, and its existence within proper limitations of time and propriety cannot be questioned; it is based upon the substantial principles of right and wrong, to be exercised for the prevention of error and injury, and for the furtherance of justice. Not only may a court set aside a judgment on application therefor, but in proper cases it may take such action on its own motion. This power to vacate a judgment exists independently of any statute and has its foundation in the common law.” 15 R. C. L. 688. This principle has found frequent recognition ' in our reports. Thus in Makalei v. Himeni, 7 Haw. 168, 169, it was held that after final decree not appealed from “the justice had the power, on being shown that his proceedings had been erroneous, to re-open the case. It would be a matter lying within his discretion to grant such a motion, likewise to refuse it.” This power is tacitly recognized in Su Wai v. Soper, 8 Haw. 184, Takamoto v. Horita, 28 Haw. 370, and Holiona v. Kamai, 24 Haw. 638, 640; and it is directly acknowledged in Rhoades v. Maciel, 25 Haw. 579, 580, in the following words quoted with approval from 15 R. C. L. 677: “It was one of the earliest doctrines of the common law that the record of a court might he changed or amended at any time during the same 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.”

In the case at bar the affidavit of the defendant supporting his motion to vacate the judgment set forth want of notice and contained the averment that the building upon which a lien was sought to he obtained and foreclosed on February 8 and 12 respectively, was completed more than forty-five days before either of the last named dates, to-wit, on the 16th day of December, 1929. These are both material considerations and it was well within the discretion of the trial judge to set aside the judgment and reopen the case for the purpose of hearing from the parties additional proof upon either or both of these matters.

8. B. Kemp (Kemp & Stainbcoclc on the briefs) for plaintiff.

G. B. Dwight (also on the brief) for defendant.

The interlocutory exceptions are overruled and the case is remanded to the circuit court for further proceedings not inconsistent with this opinion.  