
    HENRY J. LYMAN, NORMAN LYMAN, EUGENE LYMAN and RICHARD LYMAN, PARTNERS, doing Business as the CENTRAL MEAT MARKET, v. F. L. WINTER, DEFENDANT, and A. E. SUTTON and H. VICARS, PARTNERS, under the Name of A. E. SUTTON & CO., GARNISHEES.
    EXCEPTIONS PROM CIROUIT ÜOURT, FoüRTH ClRCÜIT.
    Submitted February 3, 1904.
    Decided February 20, 1904.
    Frear, C.L, Galbraith and Perry, JJ.
    A District Magistrate may, in a proper case, set aside his own judgment and reopen the case for further hearing.
   OPINION OP THE COURT BY

PERRY, J.

This is an action of assumpsit for $78.95, instituted in the District Court of South Hilo, Hawaii. Summons was issued on September 13, 1902, returnable on September 16, 1902, at 10 a. m. The defendant not being found, substituted service was made on the day of issuance, or attempted, by leaving a copy, etc., with his wife at his last and usual place of abode. On the morning of September 15, one of the members of the firm of Ridgway & Ridgway, attorneys, informed the District Magistrate, in court, that his firm would appear for the defendant upon the calling of the case. On the return day, at the appointed hour, counsel for the plaintiff, although informed by the Court and the clerk of the intended appearance of counsel for the defendant, moved for trial and such trial was thereupon bad, ex parte so far as tlie defendant was concerned. II. Vicars, one of tbe garnishees, appeared and testified. Judgment was rendered for tbe plaintiffs for tbe amount claimed. Tbe usual order in tbat Court, of bearing criminal cases first, was not followed on tbat occasion 'and an unfinished criminal case, set for tbat hour, was passed for tbe time being in order to permit of an immediate trial in tbe case at bar. At 10:12 a. m:., Messrs. Bidgway & Bidgway appeared and orally moved to set aside tbe default and judgment and to re-open tbe case. Tbe motion was denied. Three days later, similar motions by tbe defendant and by tbe garnishees were presented and denied, tbe ground alleged being insufficiency of service and irregularities in tbe obtaining of tbe judgment. On tbe 20th tbe garnishees appealed from tbe judgment (evidently tbat on tbe merits) to tbe Circuit Judge at Chambers, but their appeal was, on October 8, dismissed on tbe ground that tbe statute purporting to confer tbe right thereto was unconstitutional. In bis written opinion on this matter, tbe judge commented adversely on tbe methods tbat bad been followed in obtaining judgment and remarked, in effect, tbat tbe motion to set aside tbe same should have been granted. On tbe following day tbe garnishees filed before tbe Magistrate a second motion to set aside tbe judgment, based upon tbe same grounds and upon tbe additional grounds tbat tbe judgment was against tbe law and tbe evidence and tbat tbe garnishees bad no money or other property of tbe defendant in their bands at tbe time of service of summons. This motion was granted on October 29, tbe ground stated by tbe Magistrate being tbat tbe Circuit Judge bad in bis decision of September 20 directed tbat the case be re-opened. From this ruling tbe plaintiffs appealed to tbe Circuit Court, jury waived, on the points of law, (a) tbat tbe-Court erred in granting tbe motion because an earlier motion to tbe same effect bad been denied and tbe matter was res judicata, (b) because tbe Magistrate misconceived tbe intent and effect of tbe remarks of tbe Circuit Judge above referred to, and (c) because tbe District Court, being of limited jurisdiction, bad no authority to set aside its own judgment and grant a new trial. Tbe Circuit Court dismissed tbe appeal, on tbe ground that it was not a final order, and remanded tbe case to tbe District Court for further proceedings. Tbe plaintiff’s bill of exceptions presents tbe question of tbe correctness of tbis last mentioned ruling of tbe Circuit Judge.

Tbe mere fact that tbe District Court bad denied one or more motions to re-open would not preclude it from granting still another motion to the same effect, provided only that it had tbe power under any circumstances to set aside its own judgment and to re-open tbe case. If it bad tbe power, it could exercise it even of its own motion, if satisfied that tbe ends of justice so-required.

Tbe District Court ruling appealed from is interlocutory and therefore not appealable if that court bad authority to make it. In our opinion, District Magistrates have, under our laws, power to set aside their'own unsatisfied judgments and to re-open cases before they have been removed by appeal or otherwise to another Court whenever, in their discretion, tbe ends of justice require that tbis be done. Whatever tbe rule may be elsewhere as to police or justices’ courts, our district courts have long exercised tbe power 'and tbe practice not only has been unquestioned but has been recognized by tbe Supreme Court. See The King v. Yok Lan, 7 Haw. 854, where tbe court, composed of five judges, said that “if tbe defendant”, who bad been sentenced upon a plea of guilty and whose motion to have tbe judgment set aside and tbe case reheard bad been denied by the police justice, “thought tbe police justice was wrong in refusing tbe application for a rehearing of tbe case, be should have appealed from that decision and not from tbe judgment in tbe case.” Tbe exercise of tbis power is sometimes necessary in order that mistakes may be corrected and in order that the determination of tbe controversy may be a just one. Irregularities in obtaining a judgment constitute good ground for setting it aside and permitting further bearing.

In Gouveia v. Nakamura, 13 Haw 450, 452, we held that a district magistrate erred in not granting a motion to vacate a judgment, the ground of the motion being that the judgment was void for certain stated reasons, and remanded the ease with directions to have the judgment set aside.

Smith & Parsons for plaintiffs.

Pidgway & Pidgway and T. I. Dillon for defendants and garnishees.

Whether the district court misconceived the intent and the effect of the remarks of the Circuit Judge in his decision of September 20, or whether for any other reason the ruling of the magistrate should be sustained, we need not say. These are questions which could be determined only if we were at liberty to consider the appeal on its merits.

Counsel for the plaintiffs have, in this Court, referred to the ruling of the district magistrate as though it were an order for a new trial. While the order as stated in the certificate of appeal prepared by counsel for the appellants would seem to have been to that effect, yet upon an examination of the whole record we think the intention of the Magistrate was simply to order a re-opening for the admission of further testimony. In none of their motions did the present appellees ask for a new trial.

In our opinion the ruling appealed from is interlocutory and not appealable. The exceptions are overruled.  