The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-04-13
IN the Supreme Court of thu Ha-
Waiian Islands.
MARCH TERM, 1893.
KA9AI X. GEORGE VS.. HANAKAULANI
Holt.
BEFORE JUDD, G. j., BIcKERToN AND
FREAR, u.


Where a former judgment is claimed as an
estoppel, the record must show that
the issue was the same in both cases
and that the party claimed to be
estopped is either the same or is in
privity with the party in the former
adjudication.
The principle of Keahi VS.. Bishop, 3
Haw.. $40, does not apply to the pres
ent case.
OPINION OF THE COURT PER JUDD, c. J.
At the July term, 1892, of this
Court an action of ejectment was
tried wherein Mrs. Hanakaulani Holt
recovered of one Keolo (w.) piece OF
land situate on Queen street, Homo
lulu, being a portion of the land
described in Royal Patent No. 1730
to Kekuhauplo.
Thereafter one Hawai- x. George
brought an action of ejectment
against Mrs. Hanakaulani Holt to
recover possession OF land under the
same Royal Patent. The jury having
disagreed at the October Term, 1892,
the case came up for trial at the
February Term, 1893, of the Circuit
Court, First Circuit, Whiting, Judge,
under the Judiciary Act Of 1892.
During the progress of the trial, MIR.
A. Rosa offered in evidence for the
defense the record in the case OF
Hanakaulani Holt vs. Keolo, num-
bered 1884, and requested the Court
to charge the jury that "The question
of the pedigree Of the plaintiff Hawai-
K. George having been adjudicated
upon in the case OF Hanakaulani Holt
vs.. Keolo on the 18th July, 1892, be-
fore the Supreme Court of the Ha-
waiian Islands, the plaintiff cannot
set up his claim in this case where it
is based on the same claim, because
he is estopped from doing So" This
was refused and the correctness of
the ruling is the question raised by
the bill of exceptions, the jury having
found a verdict for the plaintiff.
The main issue in the present case
was whether Kamslo 1.-THE mother of
defendant, Mrs. Holt) was the daugh-
ter of Kapu by Paele Nv. J, as claimed
by defendant, or Of some other man
by Paele, as claimed by plaintiff.
Both plaintiff and defendant claimed
through the said Kapu, plaintiffs
claim being that he was the grand
nephew of Kapu. If Mrs. Holt was
the grand daughter of Kspu, through
Kamalc, she would take in preference
to Hawai- X. George, granddaughter.
It was therefore essential to plain
tiff's case to show not only his own
relationship, but to disprove Mrs.
Hollis.
On referring to the record in the
case of Hanakaulani Holt vs.. Keolo,
No. 1884, We find that the declaration
seeks to recover q portion of the land
described in Royal Patent No. 1870
to Kekuhaupio, but the survey at
tached to the declaration and the one
introduced in the case of Hawai-
George vs.. Mrs. Holt differ, the for
mar survey calling for 1920 square
feet and the latter calling for 1857
square feet. But as the identity of
the subject matter was not cues
toned, we may assume that the pres
emit suit is to obtain possession of all
the land that was recovered by Mrs.
Holt of Keolo and more, both surveys
being for land originally granted by
Royal Patent No. 1880.
We are asked to hold that the for
mer suit between Mrs. Holt and Ke-
olo settled conclusively the title of
Mrs. Holt to the land, based upon her
relationship to Kapu, and that it is
toned by Hawai- George in his suit
against Mrs. Holt. Counsel for Mrs.
Holt says that Hawai- George is a
privy in estate with Keolo, Keolo
being; Hawai- Georges tenant by suf
ference. We are aware that iudg.
meut between parties binds not only
the parties, but those claiming under
or through the parties, and therefore
judgments conclude parties and priv.
les in blood, in law and in estate.
Gall privies, whether in estate, in
blood or in law. are estopped from
litigating that which is conclusive
upon him with whom they are in
privity;" Herman, Estoppet and Res
Judieata, sections 139 and l45. But we
are unable to apply this rule of law
to the present case. In the first
place, the plea of the defendant He.
olo in the former adjudication was
the general issue, merely denying all
the allegations in the plaintiff 8 de-
claration. Secondly, the evidence is
not set out in that case and there is
nothing in the case to show how Ke-
olo claimed to defend her possession,
whether in her own right, or under
Hawai- George, or whether she set up
title by prescription.
The only feature that throws any
light upon the matter is the evi-
dence in the present case, page
"a OF the stenographer's notes.
Here Hawai- x. George, plain.
iff, in cross examination, saws
chat he sat in Court during the trial
over this land between Mrs. Holt
and Keolo, and gave evidence Of his
own pedigree, being a witness in be.
hall OF keolo, and gave his pedigree
substantially as he gave it in the
present case and that his mother
gave the same pedigree, and that the
pedigree of Mrs. Holt to Kapu was
also given at that trial, and that the
result was q verdict for Mrs. Holt
giving her possession OF the land
Now this may be all true, bat, t.
establish an estoppel, the prior record
must show the facts so that the Cour
can perceive the privity of the priol