The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-11-21
DISSENTING OPINION OF JUDD, c. ].

DISSENTING OPINION OF JUDD, c. J.
| am unable to agree with my
brethren in this case. l admit that ;
Judgment against the verdict mo,
o5stante cerediet0) is allowable by
the common law "where the plea t.
the declaration confesses a cause oil
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 ob8tante
Ueredicto." 1 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 IS 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
where a judgment non obstante we're
dicto is mentioned is Emma Kalele-
onalani VS.. Hoopiopio ct al, Haw.,
$50 (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 a new trial. The Court,
per Harris, j., say: I'VE 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 |
(1SS0) 4 Haw. 352, 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 for plaintiff for one half of
The land, non obstdHte 0eredict0. The
Court, per Harris, c. j., say. ''This
S undoubtedly proper iudgment,for
! Judgment non obstdHte Ueredicto
8 a proper judgment whenever on a
review of the whole case, in any view
If it the defendants claim has no
merits"
In Agnew VS.. McWsyne 4 Haw.
I'D, the action was to recover from
the amount of bet on a
horse race. The trial Judge in
itructed the jury to find for the
plaintiff but they found for the de-
.endant. 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
light in setting aside the verdict,
ind 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 ObstdHte 1eredicto.
Jul bono another trial? There is
lothing for the jury to consider and
,ass upon under the facts and the
aw as we find it.n
Thus far the cases ordered judg-
nent for the plaintiff. In Makea VS..
Salua and Kshiuka VS.. Hebron, 4
law, 227, the Court, per Harris, CD,
rdered a judgment for the defend
mt, non obstdHte Ueredicto. Here
he Court found that the relation
hip proven by plaintiff to the person
asst seized of the land was not G
Tithin the statute of descent. The '
ury rendered a verdict for the plain {
if to which the defendant ex- s
epted and moved for judgment :
q his favor non obstante veredicto !,
7hich was granted. So also in I
lewis Adm. VS.. Life ms Co., 4 Haw., /
N, the Court, per McCully, j., t
ay, "As a verdict for the de-
endsnt is the only one that woald /
g authorized upon the law and the q
facts of this case, we 2
hink the proper course now is to !
rider judgment for the defendant =
on obstdnte Veredicto, and it is so
rdered." Here the plaintiff IS in