The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1891-05-22

was for the possession of land, with
out damages, the bond by defendant,
on his motion for a new trial. not to
remove property liable to execution, Is
not necessary.
OPINION OF THE COURT By JUDD, G. J.
After hearing counsel we have ex-
amined the decision rendered by MIR.
Justice McCully on the 10th of Feb
ruary last and hereby affirm the same
and adopt its reasoning.
DECISION OF THE COURT APPEALED FROM.
The verdict being for the plaintiff
the defendants counsel presents a
motion for new trial. The plain
tiff's counsel contends that the sta
tute and the rule of Court IN res
pect to motions for new trial have
not been complied with, in that no
bond to 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-
tied with the clerk fifty dollars for
costs to accrue on further proceed
ings, which he is allowed to do by
Rule V. / deem the amount suffi-
cient 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 in Rule Will.
subdivision B., and on the ground of
newly discovered evidence for which
the course of proceeding is pre-
scribed in subdivision G. 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 divi-
sions of the rule which is explana-
tory of Section 1156, it is prescribed
that the defendant shall also file a
bond not to dispose of his property,
and the case of Joliva vs.. Kaulukou,
7th Haw., 731, interprets this to be a
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 rs 100 dollars
for costs of suit, which have beer
paid. The language of the statute
Sec. 1156, is, ga bond * thai
he will not to the detriment of the
plaintiff in the action remove OF
otherwise dispose of any property he
may have liable to execution on sucf
judgment" In this case what is the
liability for execution? It is not fol
the costs for they have been paid
and not for damages, none having
been given. The plaintiff can re
ceive no detriment in any Other
respect than in regard to the land il
controversy But he has a verdict ii
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 {
new trial. Civil Code, Sec. 1155
By statutes of some of the States
and it would seem upon common
law principle "a judgment in eject
ment is conclusive as to the right Of
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. IL
p. Sc. "a person entering under {
defendant in ejectment after the
commencement of the suit must o.
course be considered as taking anc
holding the possession, subject tt
. the Judgment to be rendered in the
suit though not made party to it
In no other way could the action o.
ejectment or any possessory actor
be made effective. Ortgen vs.. Ross
AZ I'LL, IA
What then is the bond to secure
in such case as this? And If there
is nothing to be secured and the
plaintiff can take no detriment car
it be reasonable construction of the
statute and the rule to require {
bond of security? Would not the
writ of possession issue of right te
the plaintiff at any time when the
judgment ceased to be suspended
by the prosecution for new trial
and would not such writ avail sum
marily against any person claim
ing through the defendant since
verdict rendered? My view o.
: the statute and the rule is that they
can be considered to apply only t.
verdicts and judgments which might
be realized by execution and defeat
ed by removal or otherwise disposins
of property, and are not applicable
to a mere possessory Judgment fol
real estate, wherein there is nothing
to be secured and nothing to be lost
Csssante rattone legts, cessat tpsa lee
The reason of the law having failed
the law itself becomes imperative.
Upon these considerations I hold