The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-11-16
N OF THE COURT By B1cKERroy, J.
JUDD, c. j., DISSENTING. J

June term, 1880, OF the CIRCUIT COur
of the Second Circuit, and resulted
In verdict for the contestants Tbs
proponents then and there made the
following imotion "And now comes
w. IL. Keanu, proponent Of the will
In the above entitled cause anC
moves that the verdict of the jury
rendered herein this June 18th, 1893
In fay3r OF the contestants be Sc
IN 81 a judgment be ordered fol
Inc io II. snts non Obstdnte UeTedictO OF
B.Willie . ethat the said verdict was
at Hilc \S3z4,>l2 law and the evidence
= ~ the Court heard ar
on and overruled
DIR Ming the pro
I'D the matter
T. N duly allowed
I'd 81
Sheh 6econd trial of the case,
MT hav. zen tried at the June term,
1892, OF the Second Circuit Court,
and resulted in the same verdict as
this trial did, but on a motion for q
new trial on the ground that the
verdict was contrary to the law and
the evidence, the verdict was set
aside and new trial ordered
On an examination of the evidence
adduced at the last trial we do not
see that it varies at all from the evil
dence In the first trial. There is no
potion here for a new trial and no
notice given of such q motion. The
rule is: "An exception to the verdict
as being contrary to the law and
the evidence, or the weight of evil
dence, and notice Of motion for a
new trial on this ground must be
= 10 NJ he. ~
the verdict, and before the jury are
discharged, and noted by the Clerk
N his minutes"
A.
IN this case the proponent simply
o1.Ted the Court for judgment non
= .Nnte UeredictO, and the only question
<,ls to consider Is, did the lower
TO- 70 sf1Tr In refusing to grant the
tho ielsment non o6stdnte Ueredicto is a
their ant rendered in favor OF the
deatbf Notwithstanding the verdict
of dee defendant (which can only be
It's, by plaintiff when upon an ex
tne ition of the whole proceedings
iubears to the Court that the de-
Int has admitted himself to be
the wrong, and that the issue,
cough decided in his favor by the
Nv is on 9 point which does not at
all later bis case"
Smith. Actions, 161, (Bouvier's Law
Dict. Vol. p. 761).
9TH Judgment non Obstante ueredieto.
This + andered when the plea con-
fesses pause of action and the mat
ter relbeeupon in avoidance is insult
hcients, though found true, to con-
stitut'reac defense or a bar to the
and askehiS.ia,3gment cam be en-
requirsS ia the application of the
Prst,ff made aftsf the verdict and
je.a The entry Of judgment there
2n+,.,aeuan on Judgments, p. z, and
agisroas cases there cited.
tifia5gment non obstdnte ueredictO can
thttered only after the verdict and
.ssiee the entry of judgment there
on and upon the application OF the |
plaintiff when the plea confesses
cause of action and relies upon mat |
!. or in avoidance which Is insufficient |
although found true to constitute |
either a defense or a bar to the
action"
Am. & Eng. Encyc. of Law, Vol. II,
p. 10.
In Black ON Judgments, Section
I6, number of examples are given
where this judgment may be given.
One isyA.A plea of tender of rent
after the date of its falling due is in
sufficient, and after a verdict on such
plea in favor of defendant the plain
tiff is entitled to judgment non OBJ
stdnte Ueredict0. But IN order that
this Judgment may be given, it Is
essential that the plea should dis
tinctly imply an admission OF the
plaintiffs right or title" /
Dewey vs.. David Humphrey, 8
Pick, 1877, and a large number of
cases there cited.
Sac also Tidd's Pract., 800.
Unlimited citations might be made
on this question in support of the
above authorities. By the practice of
our Courts judgment non Obstdnte
reredicto has been entered for the
defendant as we'll as for the plaintiff,
and on the evidence as we'll as on the {
pleadings; but the rule that such
judgment can only be entered when
the material facts are undisputed has
been adhered to. We cannot find {
any of the elements of confession and {
avoidance In the case at bar. The
question submitted to the jury was, 6
us the proposed will of Kamaka (k) &
a good and valid will in law?" and i
the contestants claimed that it was '
not, for the reason that the sigma r
fnfe offNiks (k), one of the subscrib- v
ing witnesses to the will, was q t
forgery, he not being able to write. q
To make this will valid it was neces-
sary that it should be witnessed by i
atwo or more competent witnesses d
rscribing their names to the will 2
Z presence of the testator." d
1865, Compiled Laws, p: 479.
o. were two signatures OF at t
9nssitnecses to the will In ques- >
y or which the jury must J.
ound to be forgery. we can i
that the evidence sustains u