
    No. 58.
    Washington Mercantile Company, Limited, v. William A. Hall.
    Exceptions from circuit court of the first circuit.
    Submitted December 5, 1904.
    Decided December 27, 1904.
    The plaintiff brought assumpsit before the district magistrate of Honolulu upon the defendant’s promissory note. The magistrate rendered judgment for the plaintiff and the defendant appealed to the circuit court of the first circuit, ■ waiving jury, and the case stood on the calendar of the January, 1904, Term as number 463. By an order made December 17, 1903, signed by the three judges of the circuit court of the first judicial circuit, all odd numbered civil cases on the calendar were assigned to tbe first judge, all even numbered civil cases to the second judge, and all criminal cases to tbe third judge, who was also designated as “presiding at said term.” Said order also provided: “1. All cases in which neither party answers ready will be peremptorily continued for the term or dismissed as in the discretion of the court may appear proper.” “8. The calendar will be called from time to time as occasion requires, of which calling counsel will be notified through the press and otherwise.” By an order made by the first judge of said court on December 31, 1903, all odd numbered cases on the jury waived calendar were called for disposition at nine o’clock in the morning of January 4, 1904, the opening day of the January, 1904, Term, at which time no appearance being made for either plaintifi-appellee or defendant-appellant, the appeal was dismissed. January 8 the defendant moved the court to re-instate the case and vacate the order dismissing the same, basing the motion on the ground that the circuit court had not been opened at the time when the order was made; that the third judge, who had been assigned and 'selected as the presiding judge of the court at the January Term, did not open the term until ten o’clock a. m. on January 4, the order dismissing the defendant’s appeal having been made at about nine o’clock on the same day and before the term had been legally and regularly opened for business by the said third judge or by any other judge or person competent to open said term; that the absence of defendant’s attorney at nine o’clock on January 4, when the order was made, was the result of mistake and inadvertence on his part; that the order dismissing the appeal was an abuse of discretion. The defendant excepted to the denial of this motion.
   Per curiam:

Apparently both parties were ignorant of or misapprehended the order made by the first judge December 31 that the jury waived calendar would be called at nine o’clock in the morning of January 4. Without deciding upon the validity or invalidity of any term acts of the first judge done prior to ten o’clock on January 4, at which hour the term was formally opened, we think that this is a case in which it would be proper that the order of dismissal be rescinded and the cause remanded to the circuit court of the first circuit for trial or such other proceedings as may be appropriate, and it is so ordered. The exceptions are sustained.

Thayer & Hemenway for plaintiff.

C. W. Ashford for defendant.  