The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1891-05-26

DECISION or THE COURT APPEALED FROM.
The verdict being for the plaintiff
the defendant counsel presents a
motion for new trial. The plain
tifas counsel contends that the sta
tute and the rule of Court IN res
pect TO motions for a new trial have
not been complied with, in that no
bond 10 the plaintiff has been filed,
and that therefore the motion should
not be entertained by the Court.
The defendant has paid the costs
accrued in the trial He has depos-
ted with the clerk fifty dollars for
costs 10 accrue on further proceed
incs. which he Is allowed to do by
Rule V. I deem the amount suffi-
Gent and that the rule may apply
although made primarily for such
appeals as are described IN Rule ~.
So far the defendant has complied
with the rule. The motion for new
trial IS brought on the ground OF the
verdict being contrary to the law
and the evidence, for which the
course Is prescribed III Rule Will.
subdivision B., and on the ground OF
newly discovered evidence for which
the course of proceeding is pre-
scribed in subdivision c. In both
the defendant has taken the pre-
scribed steps of paying the costs
accrued and securing the costs FUR
Their to accrue. In both these diyi-
sions of the rule which is explana-
tory of Section 1156, it is prescribed
that the defendant shall also file
bond not to dispose of his property,
and the case of Joliya VS.. kaulukou,
9TH Haw.. 73l, interprets this to be q
bond to the appellee and not to the
clerk. as the bond for costs may be.
a literal following of the rule, the
statute and the precedent would re-
Quire that IN this case bond should
have been filed in order to perfect
the motion. but I am of opinion that
the rule and the statute do not IN
this respect apply to this case. The
verdict Of the jury was for an I'M
divided half of the premises, as
claimed. No mesne profits were
awarded. The Judgment Of the
Court upon the verdict was for such
moiety and sixty-six 75-l0O dollars
for costs Of suit, which have been
paid. The language of the statute,
Sec. 1855. Is. " g bond that
he viii not to the detriment OF the
plaintiff IN the action remove or
otherwise dispose Of any property he
may have liable to execution on such
Judgment" In this case what is the
liability for execution? 1t is not for
the costs for they have been paid,
and not for damages, none having
been given. The plaintiff can re-
ceiye no detriment in any other
respect than in regard to the land IN
controversy. But he has verdict IN
his favor vesting the title in himself,
the entry of judgment upon which
verdict can only be suspended by
the completion of a motion for a
new trial. Civil Code, Sec. 1155. !
By statutes of some of the States,
Sand IL would seem upon common
law principle "a judgment IN eject |
ment Is conclusive as to the right of 1
possession against persons entering
upon the land under, through or IL |
collision with the defendant after !
the commencement Of the action"
Am. * Eng. Cyclop. of Law, Vol. L, |
p. So. a person entering under q |
defendant in ejectment after the /
commencement of the suit must OF /
course be considered as taking and |
holding the possession, subject to |
the judgment to be rendered In the
suit though not made a party to it.
In no other way could the action of
ejeetment or any possessory action
be made effective. Ortgen vs.. Ross,
A Ill, IA.
What then is the bond to secure
IN such a case as this? And if there
is nothing to be secured and the
plaintiff can take no detriment can
It be q reasonable construction of the
statute and the rule to require a
bond of security? Would not the
writ of possession issue Of right to
the plaintiff at any time when the
Judgment ceased to be suspended
by the prosecution for a new trial,
and would not such writ avail sum-
marily against any person claim
ing through the defendant since
verdict rendered? My view of
the statute and the rule is that they
can be considered to apply only to
verdicts and judgments which might
be realized by execution and defeat
ed by removal or otherwise disposing
of property, and are not applicable
to a mere possessory Judgment for
real estate, wherein there is nothing
to be secured and nothing to be lost
Cessasate rdtions legis, cessdt ipsa Ier.
The reason of the law having failed,
the law itself becomes imperative.
Upon these considerations hold
that bond is not required, and deny
the motion to dismiss the application
for new trial.