The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1891-05-22
In the Supreme Court Of the Ha-
waiian Islands.
In BancO.
SPECIAL TERM, MARCH 80, 1891.
s. X. MAHoE, Administrator, vs.. ID.
KAoHIMAuNU.
Exceptions from the Fourth Judi
cial Circuit Court.
BEFORE JUDD, G. J., M'CULLY, BIcKER-
TON AND DOLE, u
In an action for the recovery of specific
chattels, the jury rendered verdict
awarding an article which had not
been claimed:
Held. That the plaintiff could not refuse to
allow the error to be corrected and de-
mand a new trial, and that il was
within the province of the Court to or
der the verdict to be amended
Exceptions overruled.
BEFORE JUDD, c. J., M'cULLy, BIcKER-
TON AND DOLE,

OPINION OF THE COURT BY M'cULLY, J.
The plaintiff brought his action
before the Police Court Of Lihue, in
statute form, for the recovery of GER
tain specified articles of property
held by the defendant which he
claimed were of the estate OF his in
testate. The case came up by ap.
peal before q jury in the Circuit
Court of the Fourth Judicial Circuit,
which rendered q verdict in the
plaintiffs favor for certain OF the
items claimed, and also for the
balance of the money OF the de-
ceased, held by the defendant, thirty
nine dollars" an item which had not
been declared upon by the plaintiff.
It W IS not In the nature Of damages.
It appears that some witness had ir-
relevantly testified that at the death
of the intestate forty nine dollars
had been found in his chest, Of which
ten dollars had been taken to pay
funeral expenses, upon which the
jury thought fit to award this bal
ance to the plaintiff. Il was mainly
on the ground of this error in the
verdict that the plaintiff demanded
now trial and excepte to the ruling
of the Court denying it. He con-
tends that it is solely within the
right of the plaintiff to file renaitti-
tur, and that the Court cannot order
one.
But this is not the case OF a jury
giving excessive damages unsup-
ported by the evidence where YER
dict might be conditionally ordered
to be set aside unless the plaintiff
shall file a remittitur of q certain
amount, nor is it even the case Of a
verdict for an amount in excess OF
the declaration, but it is an award
for something the plaintiff did not
ask for. 1t is simple blunder OF
the jury.
Now with what reason can the
plaintiff ask for a new trial on this
ground, the verdict being legal in
other respectsi 1t cannot be said
that it is his right to have new
trial in order that he may take his
chance to recover more of the items
which were sued for. The reason
able method OF dealing with such
verdict is that the Court should have
ordered it to be corrected TO conform
with the declaration in order " TO
make the record speak language
explicitly which is conformable to
it's true construction IL no remitf'tar
were entered" IT il the duty OF
the clerk at nisi prius, II the jury by
mistake, find verdict for greater
damages to enter it by the amount
laid in the declaration merely" l
Arch. Prac., 1877. 1t was error to en-
ter the verdict as it was rendered !;
and we are Of opinion that the Cir
cult Court may at its ensuing term
correct its records by an amendment
in accordance with the pleadings, by
striking out the finding for thirty
nine dollars. And it is so ordered.
A. Rosa for plaintiff; w. o. Smith
for defendant.
Honolulu, April 10th, 1891.