The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-07-24

pleas and demurrer TO be bad, to
which defendant excepted and the
case is now before us on the ques-
tions raised by the pleadings.
The first plea is of the Judgment
for the defendant entered on the
sustaining of the demurrer.
This is replied to by plaintiff set
ting forth that plaintiffs declaration
was sustained by the Supreme Court
on all the points raised by defendant
and that the Court stated that the
plaintiff should be allowed to amend
the same, but before plaintiffs
amendment was filed the Judgment
was entered without authority before
the case had been remanded to the
Circuit Court and is therefore null
and void and was so held by Judge
Whiting presiding Judge of the Cir
cult Court First Circuit at the last
term and, not being appealed from,
the judgment of nullity is binding
upon all parties. This replication is
demurred to by defendant.
1t is urged upon us that this Court
had no authority to say that an
amendment to the declaration should
be allowed but that it should have
been asked for in the Circuit Court
before the case came to US on excep-
ton. We do not so hold. The
point raised by the demurrer and
argued was that the contract itself
upon which the declaration was
based disclosed no cause of action. in
that the defendant company had the
right to dismiss plaintiff from the
office of manager even though he
may have performed his duties Gin a
skillful and proper manner" The
Circuit Court sustained the view
presented by the demurrer. The
plaintiff, therefore, had no occasion
to ask for the amendment He was
out of Court altogether on the sus-
tanning of the demurrer. When he
was replaced in the Circuit Court
was his opportunity for the amend
ment. We do not find that this
point was argued in either the Cir
cult or Supreme Court, though it
may be gathered from the brief filed.
This Court might properly have over
ruled the demurrer without going in
to the matter ofrequiriDg an allegation
that the works were not suspended
for period of over three months.
We noticed it and held that such an
allegation was essential aud in order
to prevent further proceedings and
exceptions on this point declared
that the right of plaintiff to amend
should be allowed him. Hall V.
Lawrance, % n. ]. L. 2. 81, is au-
thority to show both that the Appel
late Court has power to authorize
the lower Court to allow an amend
ment and that the lower Court in
this case correctly construed the
order of this Court in holding that
the Court intended not to render
final judgment but to allow the lower
Court to proceed further as by allow
ing an amendment. We think, too,
the entering of judgment for de-
PENDANT was unauthorized, the cause
not having been finally disposed of
and was premature because there
was no Court is session which could
consider the motion to amend. 1t
was entered er parte.in spite of the dis
tinct declaration by this Court that
the plaintiff should be allowed to
amend. We do not think that it
would require bill in equity to
vacate such judgment.
Counsel for defendant say that
they had no opportunity afforded
them to argue whether the amend
ment should be allowed. We do not
consider that counsel have this right
any more than to be consulted as to
the form of our judgments. The
right to pass upon the declaration
carried with it the right to pass upon
the relief appropriate to be afforded.
We come now to the second plea,
that of res adjudicata of the decree in
equity on the petition by the com
pany for an injunction against
Rawlins, to restrain him from reas.
the management of the COM
pany's works. The decree, finding
that Rawlins had been discharged,
made the injunction perpetual. 1t
is contended that this decree is final
and conclusive and that we cannot
into the decision. We are
not of that opinion. Two of the
questions raised in the equity case
were (one) whether the company
could discharge plaintiff at its will
inquiry whether plaintiff
had performed his duties in a skill
full and proper manner and (two)
whether plaintiff had in fact per-
formed his duties in O skillful and
proper manner. Either of these
points was a ground upon which the
decree could have been founded.
Extrinsic evidence may, therefore, bs
received to show the precise point
determined. 2 Black on Judgments,
Sec 624, finds the rule to be ''fully
settled upon the authorities that ex-
trinsic evidence when not inconsis-
tent with the record aud not impugn-
ing its verify, is admissible for the
purpose of identifying the points
itigated and decided in a former
action between the same parties,
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