
    JOHN BELL v. PALEA.
    Exceptions from Circuit Court, First Circuit.
    Submitted October 2, 1900.
    Decided January 24, 1901.
    Erear, O.J., Galbraith and Perry, JJ.
    It is error to .dismiss defendant’s appeal When lie appears though he answers not ready. He has a right to require the plaintiff to prove his case.
   OPINION OP THE COURT BY

PREAR, C.J.

This case was begun in the District Court of Koolaupoko, Island of Oahu, and taken by defendant’s appeal, jury waived, to the Circuit Court in June, 1899. It was placed on the calendar for the August Term, 1899, but owing to. the large number of cases that preceded, it was not reached until the August Term, 1900, when the jury waived cases were taken up first.

On the 6th of August, 1900, at 2 p. m. the case was set for the 7th at 2 p. m. About ten other cases that preceded it were ■set for the same day. At about 11 a. m. on the 7th, or about ■three hours before the time set, the case was called and counsel Tor the plaintiff was asked if he was ready to proceed. He replied that he was not ready as he had not supposed the case would be called so soon, but would be ready on the following morning. Counsel for the defendant was then asked if he was ready to proceed. He replied that he had understood that the ■case had been set for the 8th at which time he would be ready hut that he was not ready to proceed immediately. Neither counsel had ever asked for a continuance before. Both now desired a continuance until the following day. The court of its own motion dismissed the appeal and defendant excepted on the ground that the order was contrary to law and an abuse of discretion.

On the 8th the defendant moved the court to vacate the order dismissing the appeal and to reinstate the case on the calendar, the motion being based on the record and an affidavit of defendant’s counsel, A. GL M. Robertson, setting forth the facts above stated and also that on the 7th he was in attendance prepared to try another case which had been set for trial before another Judge of the same court on the same day, when the bailiff notified him to appear in this case, that the defendant and his witnesses reside at Heeia, Oahu, and that affiant was familiar with the facts and circumstances of the case and the law applicable thereto and that in his opinion defendant had a complete defense to the action on its merits and that the dismissal of the appeal would work an injustice to him. Counsel was not actually engaged in the trial of a case before the other Circuit Judge. Plaintiff’s counsel did not oppose this motion but on the contrary joined in requesting the court to- vacate the order dismissing the appeal and to reinstate the case. The motion was denied, in part on the ground that the affidavit was insufficient in regard to meritorious defense, and defendant excepted.

On the 13th the defendant moved to reopen the matter of the first motion and the ruling thereon, that he be allowed to file an additional affidavit as to meritorious defense, and that the order dismissing the appeal be vacated and the case reinstated. This motion was opposed by plaintiff’s counsel on the ground that it was in contravention of correct practice. The motion was denied and defendant excepted.

In this court plaintiff’s counsel- joined defendant’s counsel in the view that the order dismissing the appeal and the overruling of the first motion in the Circuit Court were erroneous and should be reversed.

There seems to be some difference of opinion as to whether the dismissal of an appeal or its reinstatement is a matter of discretion, to be reversed only in case of an abuse of discretion, or a matter of strict law, to be reversed upon error in law being shown. In New Jersey it has been held that the reinstatement of an appeal which has been dismissed for failure of the appellant to appear is a matter of law and not of discretion. Howell v. Van Ness, 31 N. J. L. 443, 445. In Illinois the opposite view has been taken. Panton v. Manley, 89 Ill. 458, 460; Hinckley v. Dean, 104 Ill. 630, 638.

If the present case belonged to the discretion class, there was, in my opinion, an abuse of discretion in dismissing the appeal— considering all the circumstances, and especially the fact that the case was called and the appeal dismissed three hours before the time set for hearing. So far as I can make out, the trial judge acted on the discretion theory in dismissing the appeal, and on the law theory in denying reinstatement.

But assuming that dismissal and reinstatement are ordinarily matters of discretion, it is evident that the circumstances in particular cases may be such as to leave little or no room for the exercise of discretion, soi that the action of the court will be clearly right or wrong whether we proceed on the theory of discretion, or on that of strict law, and in my opinion this is one of those cases. The appellant did not make default or fail to appear. He appeared and was desirous of prosecuting his appeal, but merely informed the court that he was not ready— the appellee, who was the plaintiff, having already informed the court that he, also, was not ready. The case is very much like that of Langenham v. Stickney, 90 Ill. 361, in which the court said: “It then appears, from the bill of exceptions, that because defendant was 'not ready for trial,’ the court dismissed his appeal for want of prosecution. That was error. The appeal had been perfected under the statute, and the case stood for trial as any other on the calendar. Defendant had not abandoned his appeal, but was in court prosecuting it as well as he could in his own way. He may not have been entirely 'ready for trial,’ but that is no reason why his appeal should be dismissed. All the court could do, properly, was to order the trial to proceed at once, whether the defendant was ready or not. As the case was to b© tried de novo -on tbe appeal, it could not be known defendant would not be ready to present his defense, or some part of it, by tbe time plaintiff should finish bis side of tbe ease. Whether be had any defense to make, be could compel plaintiff, on tbe appeal, to prove a cause of action against him, and it was error to dismiss defendant’s appeal without allowing him a trial.” See also Lawler v. Gordon, 91 Ill. 602, 604. Upon this there seems to be no difference of opinion between tbe New Jersey and Illinois courts. See also Reed v. Rocap, 9 N. J. L. 347, 350; Lum v. Price, 16 N. J. L. 195.

J. A. Magoon and I. M. Long for plaintiff.

Robertson & Wilder for defendant.

Taking all tbe New Jersey and Illinois cases on this subject together, and not merely tbe one New Jersey case cited by tbe Circuit Court in its decision overruling tbe second motion, and tbe one Illinois case cited by counsel, we do not find that tbe courts of those States differ greatly as to tbe proper practice on appeal. In each tbe appeal bond is substantially tbe same, requiring tbe appellant to prosecute bis appeal; in each tbe trial on appeal is a trial de novo; in each tbe judgment below is vacated, not by tbe appeal, but by the new judgment above; in each it is error to' dismiss tbe appeal when tbe defendant appellant appears; in each it is in general proper to dismiss when tbe defendant appellant does not appear. Those courts differ as to whether reinstatement and perhaps dismissal also is discretionary or not when tbe appellant fails to appear .

We have previously reversed tbe order dismissing tbe appeal, and now state our reasons therefor. These reasons apply to each of tbe other four similar cases, tbe order dismissing tbe appeal in each of which has been previously reversed.

CONCURRING OPINION BY

GALBRAITH, J.

I concur in tbe conclusion, but not in all of tbe reasons given therefor by tbe Chief Justice in tbe above decision. It seems to me that tbe question presented by tbe exception to tbe order of the Circuit Court dismissing appellant’s appeal is clearly one of law, and not of judicial discretion.

The discretion theory carries with it the idea that there are no fixed rules of law or questions of strict right involved. To me, it seems that these are the only questions presented. When the appeal was perfected the appellant was entitled, as an absolute right under the law, to a new trial de novo. He also had a right to demand that the appellee prove a cause of action against him. The order dismissing his appeal was a denial of these rights. An error of law, and nothing more.

CONCURRING OPINION BY

PERRY, J.

It seems to me to' be unnecessary to decide whether or not it was within the power of the trial judge, as a matter of strict law, to dismiss the appeal in question, and for this reason; if it was not in his power to dismiss the appeal, then the order excepted to was clearly erroneous, and the exception must be sustained; if, on the other hand, it was in his power to dismiss the appeal, still that power could at best be made use of only in the exercise of a sound discretion, and in such case, also, the exception must be sustained, for, in view of all the circumstances of this case, there was, in my opinion, an abuse of discretion in dismissing the appeal. In other words, either the court did not have the power at all, or, if it did, it was merely the power in its discretion to’ dismiss. I concur, therefore, in the conclusion that the exception must be sustained, but base such concurrence solely on the ground that, assuming that the matter is one belonging to the “discretion” class, there was an abuse of discretion.  