The Hawaiian gazette., 1893-08-08

OPINION OF THE COURT BY FREAR, j.
The bill alleges that the defend
ants through their agent, one Selig,
promised one T. A. Lloyd, guardian
of John McKeague, non compos,
then the husband of the plaintiff,
Mary Kalelalii, that they, the de-
PENDANTS, would pay to said Lloyd
the sum of $4,000 for the benefit of
the said Mary Kaleialii and her
children if he, the said Lloyd, would
bring suit in equity to set aside a
. certain mortgage made by said Nc
Keague to one Kennedy and should
succeed in procuring the same to be
set aside, and if in consequence
thereof the defendants should real
ize the sum of $4,000 upon fore
closure OF a certain mortgage held
by them upon the property covered
by the first above mentioned mort
gage; that said conditions were per
formed: that afterwards the defend
ant NJ. Lonisson, in behalf of the
firm of NJ. S. Grinbaum & Co. and
the said Mary Kaleialii, in pursuance
Of said premise, agreed that the de
PENDANTS should retain the po= session
Of the said sum Of $4,000 and pay the
sum of S25 monthly as interest upon
the same to said Mary Kaleialii for
the benefit of herself and her said
children until they should arrive at
their legal majority; that the de-
PENDANTS paid the said sum of SIS as
aforesaid for some time and then
refused and still refuse to continue
TO pay the same. The plaintiff prays
that the defendants be decreed
trustees of said sum of $4,000 for the
use of said Mary Ksleialii and her
children, and for an accounting.
The defendants, by way of an
swer, deny the making of either of
said promises or agreements and
aver that they made the monthly
payments Voluntarily and as a mat
ter of mere charity, and, by way of
plea in bar, allege that said Lloyd
brought against these defendants his
action at law at the July term, 1891,
of the Supreme Court of the Ha-
waiian Islands, upon said promise
alleged to have been made to him
and that upon issue joined therein
and trial thereof by jury at said
term a verdict was rendered for these
defendants and that final judgment |
was entered upon said verdict and is
NOW IN fr,ll fOrao oDl a4faoH
The case comes to us upon appeal |
from a decree of a Circuit Judge of |
the Circuit Court of the First Circuit, !
who sustained the plea in bar and !
dismissed the bill.
The first point raj sed by plaintiffs
counsel is that the Judgment offered |
in evidence by the defendants in sup.
port of their plea should not have
been admitted, because it had been
improperly entered and is not in
proper form The rule of Court then
in force required the judgment re-
cord to he filed before the end Of the
term in which the verdict was rem
dered or within ten days thereafter,
no exceptions having been allowed,
and the statute requires that "Judg-
ment shall be entered by the Clerk.
without motion, Immediately upon
the rendition of a verdict" TIE
Judgment in question was entered
May 2, 1893, as of the July term,
1891. 1t is contended that Judgment
could not be so entered nunc pro tune,
or at least not without an order of
the Court
When a Judgment has actually
been rendered at a term of Court
and the Clerk has omitted to enter it
within the time required by rule or
statute, the Court undoubtedly has
power to order an entry aunc pro tune
at any time afterwards, provided no /
injury would thereby result to third
parties. Black, Judgments, Sec. $50. :
1t is the practice in many jurisdic-
lions for the party desiring such I
entry to first obtain an order from
the Court. But this is not essential, {
and it has not been the practice in {
this country to obtain such order. I
The practice of the Clerks not to |
enter judgments forthwith but to
AXE time for them, was recognized I
1y this Court in Rose cs. Smith, 5
law, $50 Indeed, this case is direct
for holding that a former
Judgment pleaded in bar must be
'egarded as having been entered
lDon the rendition OF the verdict, E
actually entered or not, in !,
.smuch as it was the Clerks duty
o enter it. In First Nat. Bank as. q
FolB. 10 Cal, 70, and in Bundy Us. 5
rs Cal, $50, It was held b
bat Judgment was properly en- a