The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-07-13
OPINION OF THE COURT, BY
FREAR, ].

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the garnishment must hold as against
the receiver (see decision on former
bill of exceptions in this case) the
Court Ca different Judge presiding)
heard the plaintiff and garnishee, jury
having been waived, and rendered Judg-
ment against the defendants and gar
nishee for $738.29, and 1888 interest,
and for costs. The defendants were in
default and the receiver made no fur
Their contest in the trial court. The
garnishee took various exceptions to
the final judgment and now brings
them here.
PLAINTIFFS counsel contends that the
garnishee could not properly take these
exceptions, for the reason that they
relate to matters which concern only
the plaintiff and the defendants. the
garnishee being interested only in the
question of the jurisdiction OF the court
over the subject matter and over the
defendants, and over the question OF
the amount owing by him at the time of
the garnishment. We need not consider
what the general law is in this respect
elsewhere, for our statute relating to
garnishment Comp. Laws, p. 300 eX-
pressly provides that the garnishee
defend his principal" and, although
there appears to have been no formal
request by the garnishee for permission
to defend his principals, or order by
the court granting such permission, yet
he appears to have taken, in fact, and
without objection, such steps as
amounted in effect to a defense of his
principals, and it is stated in the bill
of exceptions that the exceptions were
taken by the garnishee "fOr himself
and the defendants" We think it must
at this stage of the case be considered
that he was acting for the defendants
under the authority of the statute, as
well as for himself.
These exceptions to the final judg
ment will be considered in order.
Among them are several similar to
those taken to the earlier ruling and
brought here by the receiver and the
garnishee. (See former decision.) The
garnishee took these to the final judg-
ment for fear that the bill embodying
the exceptions to the earlier ruling
might be dismissed on the ground that
that ruling was interlocutory. This
court entertained that bill of exceptions
without considering it's propriety, no
objection having been made thereto
And without now considering whether
the earlier ruling was interlocutory or
final, or what the proper practice is in
such cases, we may remark that that
ruling appears to have been regarded
both by the trial judge and by the par
ties as final as to the question of pref
erence as between the receiver and the
plaintiff, and perhaps also as to the re-
ceiver's right to further appear and
contest the validity or amount of the
plaintiffs claim itself; at least the re-
ceiver took no further part in the case
in the trial court, and appears to have
relied on the first bill of exceptions en-
tirely. The questions raised by these
exceptions have already been consider
ed with the conclusion that a new trial
should be had upon this Uhase of the
case, and the reasons for so holding
need not be restated here.
An exception was taken to the rem
dering of judgment in vacation, there
being no stipulation that it might be
rendered then. The case was heard,
jury waived, in term, and, although the
prevailing rule elsewhere may be that
in such cases the judgment must be
rendered in term, yet we understand it
to be otherwise by practice in some
jurisdictions as well as by statute in
others. 1t certainly has been the prac-
tice here for many years for courts to
render in vacation judgments in cases
heard, jury waived in term. So far as
we are aware, the validity of such judg-
ments has never hitherto been question
ed here. and we feel obliged to hold that
this practice has settled the rule
There was no error in proceeding
with the trial or in rendering judgment
pending the first bill of exceptions. or
in rendering judgment at the same time
the decision was made, or in the entry
of judgment by the clerk four days
later, no bill of exceptions having been
presented. This course is authorized
and the rights of all parties protected
by our practice and the provisions of
the statute. (Secs. 74-7S. CHI 81, Laws
of 1922 See also Herblay V. Norris
8 Haw., 121.
Exception was taken to the allowance
of the item 1912 days work for horses,
$500" the contention being that this
was mistake for 1872 hours work for
horses, $3.50" Tt seems that this work
was done at 81 a day of ten hours. and
it would therefore be very easy to make
the mistake of copying '1915 days,
$500 for 1919 hours, $3.50" The
evidence adduced for the defendants
upon this item support their contention
for hours for their account kept con-
currently with that of the plaintiff con-
tains an item, "Cr. by 1912 hours with
team $3.50" But as this is not SO much
question of the comparative weight
of evidence adduced on the two sides
as question of whether the evidence
on the plaintiffs side alone is sufficient
to support this contention, let us con-
slider that evidence alone This evil
dence must be taken as a whole It is
not sufficient if part of it taken by itself
would support his case, if the effect of
that part is overcome by other parts |
The plaintiff testified that his bills
were made from his ledger, into which
a friend copied the items, some from