The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-04-22

ne Court BY AHsiin,J
This is an action Of ejecimeni brought by
plaintiffs to recover lands in Honolulu. as
heirs Of Kane tie pateniee under Royal Pat
eni 57Is
The defendant KAbeA Kapili clsimI title to
an undivided halfthe said land az grantee Of the
heirs Of KAiliuli the widow OF Kane, and DE-
uies the hsirship Of the plaintiffs.
TbereupOn the plaintiffs produce tue rec
ord o! Judgment in ejectmeni for an unt-
vided half Of certain lands in Honolulu, be-
tween them and Railiuli as plaintiffs, and the
defendant Kapu as defendant in plaintiffs
favor, establishing them TO be heirs Of Kane
by their mother aud his daughter, Hiapo, and
claim that the defendant Kapihi is thereby
| estopped from claiming as such grantee to
the heirs Of KailIuli. The Court held defend
ant so estopped.
,Further the said defendant showed him
self and defendant kapu TO he in possession
Of separate part. Of the land claimed and that
DO demand iul Teuts and profits had been
made, and 30 defendant claimed shat there
could I've no recovery therefor againt the de
| PENDANTS jointly. The Court held there might
be joint recovery against defendants and the
| plaintiffs recovered the land claimed aud
damages $50. The defendant Kapihi ap-
| pealed to this Court.
In the Judgment claimed as an estoppel
these plaintiffs and Kailiuli Joined in an allie
cation that they were entitled as tenants in
common to the moiety they claimed as heirs
by descent froa Holslua the patsntes and the
defendant Kapu denied it. The question
Irrigated was whether the plaintiffs were such
tenants IN common and to show that fact
| it was necessary to prove and was proved that
Kane the brother Of Holelua left a daughter,
Hiapo; the mother Of these plaintiffs now
dead, and Widus', .lIs said nailigli. Kaili-
uli was SWIM at The trial to tie fact so re-
quired.
The defendants counsel says there was no
estoppel and cites Freeman on Judgments,
Section l5s as follows: parties To judy
meBt are not bound by il. in subsequent
controversy between each other, unless they
were adversary parties in the original action
The rule as 10 sstOppGl by Judgment j. well
laid down in Emberty We. Conner Com. n
Y. Court Of Appeals X. 5ll-22 as follows
THAT the Judgment or decree Of Court pos
Eessing competent jurisdiction, lie, as a gen
ersl rule, final, not only as TO the subje, /
matter thereby actually determined, but az To
every other matter which the parties might
litiEaLo in the cause and which they might
have had decided, can admit Of no doubt"
and agaiu "Thc general rule is that al allie
CATION on record upon which issue has been
once taken and found, and Judgment has
been rendered, ar between the parties taking
II and their privies lie conducive, according
10 The finding thereof so as TO estOp the par
ties respectively from again litigating that
fact once so tiled aai found"
To render parties, adversary parties in an &C
ton, it's not Necessary that they should be op-
posed as plaintiff and defendant, but that
their interests should he opposed to each
other and that the litigation should settle the
question between them either by admissions
Of record or by proof.
Often IN Courts Of equity the rights Of
different defendants are litigated and settled
as between themselves even without definite
allegations, but if their rights were adverse
aud not pleaded or litigated, the Judgment
rendered would not be conclusive between
them. See Graham va. r. Il. Co Wal. 7Oi,
cited by defendants counsel.
But VIC reprehend that no case can be
found where a party joins in pleading with
other plaintiffs whom she might dispute as to
fact material between her and them, and al
legos that their claim as to that fact is true,
and that claim is litigated in the action and
decided in their favor and judgment thereon
is entered, where such judgment was not held
conclusive upon all parties. Ia that care had
halliuli denied that she war tenant. in COM
mon with these plaintiffs, and that fact had
been established, sh0 would not only have
been tenant in dover as she alleged hut
would have been entitled ~ fee 10 one undi-
Nided half OF the land there claimed as
widow Of Kane who died without Issue.
Having sOlemnly admitted of record in that
case that she was not such statuary heir TO
one half and that these plaintiffs were such
heirs as alleged by her, aud tenants in con-
mon with her, having sworn to that fact on
Tie trial and that question being Irrigated by
another interested on an issue to which she
was party, she and her priyy, the defend
ant, are cstopped.
In Wilcox VS.. Mower ) Mass. 4O7, three
plaintiffs were Joined and Judgment was rem
dered against them for costs ard in a subse-
queut action against one for contribution to pay
costs, that one was permitted to show that
the suit was begun without his knowledge or
consent and that lac never personally Joined
in the issue. This was right, but in that
case as 10 the issue iitigated he was held os-
topped and the question Of contribution be-
tween them was not in issue. See Kcahi VS..
Bishop, Hawn. Il. $40.
We find no case cited where joint plaintiffs
in litiEated issue are not estopped by the
result
The point as to damages was not argued
by the appellants counsel and We think can
not I've maintained.
The exceptions are oTerruled.
f. Preston for plaintiffs; Kinney & Peter
sou for defendants.
Honolulu, March %, lss2.