The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-11-21

disease then which occasioned his
death in twelve days thereafter
Held, breach of the warranty, and
so plaintiff could not recover. There
are five cases of a similar character
in Haw. The first is Mahukaliilii
VS.. Hebron, id. log. The Court here
reversed a judgment for defendant
which had been rendered by a JUS
tice in a jury waived case, and or
dered judgment for plaintiff.
! On page 81, Mokuhia VS.. McCsnd-
less, on a question reserved, the YER
dict being for plaintiff, the Court,
per Judd, CD, ordered judgment for
defendant non 0bstante Ueredict0.
On page 491, in Kauhikoa VS..
Hebron ct al, the Court, per Preston,
j., ordered the verdict set aside and
Judgment entered for defendants.
The ground was that as defendants
held the land as devisees by virtue of
the adverse possession of their ties.
tator and two others, the defendants
testator being the survivor of joint
disseizors, they were solely entitled
to the land In Richard vs. Couto,
id. 507, the lower Court had ordered
a 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. $50, where the Court say,
"We are of opinion that the trial
Justice might properly have ordered,
if asked, judgment non o6stante
geredictO."
1 think it is clearly settled by the
cases above quoted that this Court
has exercised the authority to set
aside verdicts and order judgments
either for plaintiff or defendant, &C
cording as the uncontested facts of |
the case show them to be entitled !
to judgment.
l admit that in the case before US
a judgment for the prepayment 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
Oh behalf of the contestant that Nika
Hid not sign his name to the will be,
cause these witnesses thought he
could not write and never knew him
10 write his name, does not disprove
he positive testimony of those who
saw him write it, and of the intrinsic
evidence afforded by the will itself. {
The counsel for the proponent ex
,epted to the verdict as contrary to
he evidence, and moved for judg J
nent non obstdnts Ueredicto. 1t is :
.ontended that he should have
moved for new trial, and because
le did not, but moved for what was {
lot granted, he has no remedy and /
his unjust verdict must stand. The v
Jlrcuit Judge refused his motion '
or Judgment Notwithstanding the T
erdict, which was based upon his q
RECEPTION to the verdict as being =
ontrary to the evidence. Exceptions 9
ERE allowed to this refusal. I am :
nable to see why this does not Z
ring up to this Court the question s
neither the verdict was sustained by d
lie evidence. If we find that the YER
let was erroneous we have the au-
lority to either, if the case warrants
, order judgment for the propo-
ent Notwithstanding the verdict, A
, to order a new trial. Section II
the Act to Reorganize the Judi
airy provides for this. "When judg-
ent has been entered in any case
which exceptions have been al
wed, the judgment may be vacated a!
: the Supreme Court without any ST
rit of error in like manner as if it :
I'd been entered by mistake, and p
ereupon such further proceedings OF
MI be had tn tile cause as to Ian and b,
'tice shall dppertatn." This is a re- u
actment of Sec. 500 of the Civil W
ode. -
were allowed in this " "
Sc and l think it proper procedure i0
vacate the judgment, presumably .
tered for the contestants, and CT
der new trial. If an exception to sc
e verdict as contrary to the evil re
nee is sustained it would follow sh
at the verdict must be set aside and SC
depends upon the view of the Pr
'urt upon the evidence whether q m
W trial shall be ordered or whether
different judgment shall be {
dered.
In short, an exception brought
re to the denying of the motion for
dgment Notwithstanding the YER
1t raises, as 1 think, the question
on which the motion was founded
lether the verdict ought to stand
d the statute above quoted author
IS us to order such further proceed
gs as to law and justice shall apper- A
n, which l think should be a new
al. ev
The supervision by the Court of ri
> verdicts of juries is in my opin- be
a wholesome exercise of mower -