The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-11-21
OPINION OF THE COURT BIZ BIcKERToy,
(JUDD, c. j., DIssENTISG.)

This cause came on for trial at th
June term, 1893, of the Circuit Cou1
OF the Second Circuit, and resultet
IL g verdict for the contestants. Tn
proponents then and there made tn
following motion And now come
W. B. keanu, prepayment of the vii
In the above entitled cause anC
moves that the verdict of the jury
rendered herein this June 14th, 1893
IN favor of the contestants be SCI
aside, and a judgment be ordered fol-
the proponents non o5staNte ueredieto OIL
the ground that the said verdict was
contrary to the law and the evidence.
On the next day the Court heard ar
gument on the motion and overruled
the same, TO which ruling the pro
ponents excepted, and the matter
now comes here on a duly allowed
bill Of exceptions.
This is the second trial of the case,
If having been tried at the June term,
1892, of the Second Circuit Court.
and resulted in the same verdict as
this trial did, but on motion for a
new trial on the ground that the
verdict was contrary to the law and
the evidence, the verdict was set
aside and a 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
motion here for a new trial and no
notice given of such 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 a notice of motion for a
new trial on this ground must be
made At the time Of the rendition of
the verdict, and before the jury are
discharged, and noted by the Clerk
on his minutes"
Rule Is &, Rules Of Circuit Courts,
p. T.
In this case the proponent simply
moved the Court for judgment non
o5staa,s 0efedicto, and the only question
for US to consider is, did the lower
Court err in refusing to grant the
motion.
Judgment nan o5staHte geTedicto is a
Judgment rendered in favor of the
plaintiff Notwithstanding the verdict |
for the defendant (which can only be
made by plaintiff when upon an ex
animation Of the whole proceedings |
1t appears to the Court that the de-
PENDANT has admitted himself to be |
in the wrong, and that the issue,
though decided In his favor by the
jury, is on a point which does not at
sll better his case"
Smith. Actions, 161, (Bouvier's Law
Dict. Vol. 1 p. 76l).
The judgment non obstdnte geredicto.
This is rendered when the plea con-
fesses a cause of action and the mat
ter relied upon in avoidance is insult
fcient although found true, to con-
stitute a defense or a bar to the
action. This judgment can be en-
.ered only on the application of the
plaintiff made after the verdict and
before the entry of judgment there
IN"
Freeman on Judgments, p. Z, and
numerous cases there cited.
Judgment non o5stdHte Ueredicto can
,e entered only after the verdict and
before the entry of Judgment there
u and upon the application of the
plaintiff, when the plea confesses a
,ause of action and relies upon mat
er in avoidance which is insufficient
although found true to constitute
sither a defense or q bar to the
lction."
Am. q Eng. Encyc. of Law, Vol. II,
}. 70.
In Black on Judgments, Section
e, number of examples are given
where this Judgment may be given.
)ne is: "A plea of tender of rent |
Ifter the date of its falling due is in
uficient, and after a verdict on such
,les in favor of defendant the plain
if is entitled to judgment non OBJ
tGHte 0eredict0. But in order that
his judgment may be given, it is
that the plea should dis
inctly imply an admission of the
Plaintiffs right or title"
Dewey vs.. David Humphrey, 5
lick, 1S7, and a large number of
ases there cited.
See also Tidd's Prsct., 920.
Unlimited citations might be made
n this question in support of the :
bove authorities. By the practice of
ur Courts judgment non obstdHte
sredicto has been entered for the
as we'll as for the plaintiff,
nd on the evidence as well as on the {
headings; but the rule that such
alignment can only be entered when '
be material facts are undisputed has
cen adhered to. We cannot find
Nv of the elements of confession and {
yoidsnce in the case at bar. The I
uestion submitted to the jury was, |
e the proposed will of Kamaka (kl I
good and valid will in lsw?" and {
,e contestants claimed that it was {
81. for the reason that the sigma y
ire of Nika Ok, one of the subscrib- c