The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-11-16
DISSENTING OPINION OF JUDD, c. J

L am unable to agree with my
brethren In this case. / admit that 6
judgment against the verdict (n0n
Obstante Ueredicto) is allowable by
the common law "where the plea to
action In the plaintiff and sets up
matter In avoidance, and such mat
ter, though found true by the verdict
OF the jury, is insufficient in law to
constitute bar or defense to the &C
ton, and the Court Will enter judg-
ment for the plaintiff non oGstante
reTedictO." / Black on Judgments,
Sec. 16. The reasoning is that if the
plea is bad In law, though the jury
find it true in fact, it does not entitle
the defendant to judgment, and, as
he by his plea confesses the plain
tiff g case and sets up new matter in
avoidance, which, being bad in law,
the plaintiff is entitled to Judgment.
The judgment against the verdict is
by the common law on the pleadings
alone. But we have In this country
departed from the common law and
established a different procedure.
The first case In our Court that find
dicto is mentioned is Emma Kalele-
onalani VS.. Hoopiopio ct al, 3 Haw.,
GS2 (1S76). The bill of exceptions
shows that certain exceptions were
taken and allowed to the admission
of certain evidence, and also that the
verdict rendered was not sustained
by law or evidence. There was no
motion for new trial. The Court,
per Harris, j., say: 1--WE are asked
to enter judgment for the plaintiff
non obstante veredicto." After dis
cussing the evidence offered by the
defense, they say: "We must decline
to enter Judgment for the plaintiff,
but do order a new trial" It is evil
dent from this case that the Court
would not have hesitated to enter
judgment for the plaintiff If the evil
dence had justified it. This was not on
consideration of the pleadings but of
the evidence. In Kaia vs.. Kamaile
(18S0) 4 Haw. 1852, the case was eject
ment. The jury rendered verdict
for defendant for the whole estate.
The evidence showed that the par
ties were tenants in common and
there had been no custer. The Court
on motion ordered judgment to be
entered f3r plaintiff for one half of
the land, non 0bstdnte UeredictO. The
Court, per Harris, G. j., say. "This
is undoubtedly a proper judgment,fo
q judgment non O5stante Ueredicto |
is proper judgment whenever On a
review of the whole case, in any view
Of it the defendants claim has no
merits -
In Agnew VS.. McWayne 4 Haw.
Id, the action was to recover from q
the amount Of a bet on
horse FACE. The trial judge in
structed the jury to find for the
plaintiff but they found for the de-
PENDANT. The Court in banco say
per McCully, j., "As the verdict was
contrary to the law SO
given and to the uncontested facts,
We are of opinion that the Court was
right in setting aside the verdict,
and as there was no question upon
he fact that the defendant held the
plaintiffs deposit at the date of the
demand, we are of opinion that it
vas proper to order judgment for
he plaintiff, non obStdnte Ueredicto.
Jui bono another trial? There is
lothing for the jury to consider and
BASS upon under the facts and the
aw as we find it."
Thus far the cases ordered iudg
nent for the plaintiff. In Makea VS..
Nalua and Kahiuka vs. Hebron, 4
law, 227, the Court, per Harris, CD,
'rdered Judgment for the defend
mt, non obstaHte reredictO. Here
he Court found that the relation
hip proven by plaintiff to the person
asst seized of the land was not
within the statute of descent The
ury rendered a verdict for the plain
if to which the defendant ex-
opted and moved for judgment
n his favor non obstante veredicto
7hich was granted. So also in
,ewis' Adm. VS.. Life Ins. Co, Haw.,
", the Court, per McCully, j.,
sy, "As a verdict for the de-
endant is the only one that woald
Q authorized upon the law and the I
facts of this case, we
mink the proper course now is to {
rder Judgment for the defendant
0R obstdnte reredictO, and it is SO !
rdered." Here the plaintiffs in
state had warranted that at the
me his life insurance policy was
ken out he was in good health, and
adj no serious disease. He had a |
sease then which occasioned his t
cath in twelve days thereafter. e
ED, breach of the warranty, and v
plaintiff could not recover. There 1
q five cases of a similar character Y
Haw The first is Mahukaliilii .,
!. Hebron, id. JOG. The Court here y
versed a judgment for defendant u
hich had been rendered by JUS u
20 in a jury waived case, and or u
red a Judgment for plaintiff. b
On page 81, Mokuhia VS.. McCand- O
s., on a question reserved, the YER q
ct being for plaintiff, the Court,
II Judd, CD, ordered judgment for n
PENDANT non obstante reredicto. =,
On page 491, in Kauhikoa VS.. a
obron ct al, the Court, per Preston, ~
ordered the verdict set aside and u
dgment entered for defendants. y
le ground was that as defendants d
Id the land as devisees by was reau W