The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-08-04
OPINION OF THE COURT BY rREAR, j.

OPINION OF THE COURT By FREAR, J.
The bill alleges that the defend
ants through their agent, one Selig,
promised one 7. 4. Lloyd, guardian
of John McKeague, non compos,
;nsn the husband of the plaintiff,
Mary Kale1alii, 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 a suit In equity to set aside
certain mortgage made by said Nc
Keague TO one Kennedy and should
succeed in procuring the same to be
set aside, and il 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. Louisson, in behalf of the
firm of III. S. Grinbaum & Co. and
the said Mary Kaleialii, in pursuance
OF said promise, 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
tho benefit of herself and her said
children until they should arrive at
their legal majority; that the de
PENDANTS paid the said sum of $50 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 $1,000 for the
use of said Mary Kaleialii 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 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
aud that upon issue joined therein
and trial thereof by u jury at said
term a verdict was rendered for these
defendants and that final judgment
was entered upon said verdict and is
now in full force and effect.
The case comes to Us upon appeal
from a decree of q Circnit Judge of
the Circuit Court of the First Circuit,
who sustained the plea IN bar and
dismissed the bill.
The first point raised by plaintiff
counsel ia that the Judgment offered
IN evidence by the defendants In sup
port OF their plea should not have
been admitted, because 1t had been
improperly entered and is not in
proper form. The rule of Court then
In force required the Judgment re-
cord TO be flied 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 q verdict" The
Judgment in question was entered
Nav ,. 1898, 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 term of Court
and the Clerk has omitted to enter 1t
within the time required by rule or
statute, the Court undoubtedly has
power TO order an entry Htgc pro tame
ut any time afterwards, provided no
injury wonld thereby result TO third
parties Black, Judgments. Sec. $50.
it Is the practice in many jurisdic-
tions for the party desiring such
entry 10 first obtain an order from
the Court. Bot this isnot essential,
and IL has not been the practice Ia
this country TO obtain such order.
The practice OF the Clerks not TO
enter Judgments forthwith but to
take time for them, was recognized
by this Court in Rose rs Smith, 3
Haw., $50. Indeed, this case il direct
authority for holding that "a former
judgment pleaded in bar must be
regarded IS having been entered
upon the rendition Of the verdict,
whether actually entered or not, in
asmUch as it was the Clerks duty
10 enter IT. In First Nat. Bank ps.
Wolf, 20 Cal. IS, and in BuRdy Is.
Hagiasss, &c Cal, So, it was held
that a Judgment was properly en-
tered b. the Clerk after the time
within which it was required by the
statute to be entered No injury
could result 10 defeated party by
such entry. It IS IN his power TO
move Tor entry az once, or, to move
Tor an amendment afterwards II the
entry IS not conformable to the judg-
ment rendered The Judgment could
not be lmpeached collateralIy merely
bscaGse entered aHae pro tune without
an order Of the Court. The iudg-
neut IS also n proper form, although