The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-11-16

tdiOF ana TWO Otner5, the DEFENDANTS
testator being the survivor of joint
disseizors, they were solely entitled
TO the land. In Rickard VS.. Couto,
Id. 507, the lower Court had ordered
| defendant, contract laborer, back
TO service of plaintiff, the Court, per
| Judd, CD, reversed the Judgment
and ordered judgment for defendant.
The last case reported is kalua VS..
Selig, id. Csc, where the Court say,
I'VE are OF opinion that the trial
Justice might properly have ordered,
If asked, judgment non obstaase
Ueredict0."
think it is clearly settled by the
cases above quoted that this Court
has exercised the authority to set
aside yerdicts and order judgments
either for plaintiff or defendant, &C
cordiDg as the uncontested facts of
the case show them to be entitled
to judgment.
L admit that in the case before Us
judgment for the preponent of the
will, Notwithstanding the verdict for
the contestant, would hardly be justi-
fed because the question whether
the alleged subscribing witness
Nika, wrote his name to the will
was disputed and the contestant
might on another trial produce fur
Their evidence establishing his case.
But l can see no reason why this
Court cannot order a new trial. The
verdict Is admittedly contrary to the
evidence adduced. And the evidence
on behalf of the contestant that Nika
did not sign his name to the will be
cause these witnesses thought he
could not write and never knew him
TO write his name, does not disprove
the positive testimony of those who
saw him write it, and of the Intrinsic
evidence afforded by the will itself.
The counsel for the proponeut ex-
cepted to the verdict as contrary 10
the evidence, and moved for judg
ment non Obstdnte Ueredict0 1t Is
contended that he should have
moved for a new trial, and because
he did not, but moved for what was
not granted, he has no remedy and
this unjust verdict must stand. The
Circuit Judge refused his motion
for judgment Notwithstanding the
verdict, which was based upon his
exception to the verdict as being
contrary to the evidence. Exceptions
were allowed to this refusal. 1 am
unable to see why this does not
bring up to this Court the question
whether the verdict was sustained by
the evidence. If we find that the yer
dict was erroneous we have the au
thority to either, if the case warrants
it, order Judgment for the propo-
nent Notwithstanding the verdict,
or TO order a new trial. Section n
of the Act to Reorganizs the Judi
ciary provides for this. when judg-
ment has been entered in any case
in which exceptions have been al
lowed, the judgment may be vacated
by the Supreme Court without any
writ of error in like manner as if it
had been entered by mistake, and
such further proceedings
shall be had in tile cause as to lao and
Justice shall appe,tain." This Is a re
enactment of Sec. S39 of the Civil |
Code.
Exceptions were allowed in this
case and think it proper procedure
10 vacate the judgment, presumably
entered for the contestants, and |
order a new trial. If an exception to
he verdict as contrary to the evil
lence is sustained it would follow
hat the verdict must be set aside and
t depends upon the view of the
court upon the evidence whether
lew trial shall be ordered or whether
different judgment shall be !
In short, an exception brought
ere to the denying of the motion for
Judgment notwithstanding the YER
let raises, as think, the question
pom which the motion was founded
shether the verdict ought to stand
and the statute above quoted author
yes us to order such further proceed
ngs as to law and justice shall apper-
ain, which / think should be a new
rial.
The supervision by the Court of
he verdicts of juries is in my opin-
IN a wholesome exercise of power
nd is conducive to the public well
are.
Honolulu, November Ii, 1893.