
    
      IN RE ESTATE OF KAMAKA, (k).
    Exceptions;
    Hearing, September 18, 1893.
    Decision, November 13, 1893.
    Judd* O.J., Bickerton and Frear, JJ.
    The question submitted to tbe jury was, “Ts tbe proposed will a good and valid will in law H” Tbe contestants claim that tbe signature of one of tbe subscribing witnesses was a forgery. Tbe verdict was. for tbe contestants. Tbe proponents moved for a judgment non obstante veredicto.
    
    Held, This is not a case of- confession and avoidance, and does not come within tbe .class of cases-where such a judgment can be given.
   Opinion of the Court, by.

Bickerton, J.

(Judd, O.J.,.Dissenting.)

This- cause eame on for trial at the June Term, 1898, oí.' the Circuit Court of the Second. Circuit, and resulted in a. verdict for the contestants.. The proponents then and there made the following motion: “ And now comes ~W. B. Keanu, proponent of the will in the above entitled cause and moves-that the verdict of the jury rendered herein this June 14th,. 1893, in favor of. the contestants be set. aside,, and a judgment be ordered for. tbe proponents non obstante veredicto on. the ground that the said verdict was contrary to the law and the evidence.” On the next day the Court heard, argument on the motion and overruled the same, to which ruling the proponents excepted,, and the matter now comes here on a duly allowed bill, of exceptions.

This is the second trial, of the ease, it having been tried at tlie June term, 1892, of the Second Circuit Court, and resulted in the same verdict as this trial did, .but. on a 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 evidence in the first trial. There is no motion here for a new. trial and no notice given of such a motion. The rule is: “ An exception to the verdict as being contrary to the law and the evidence, or the weight of evidence, .and a notice of a motion foT 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.”

Buie 16a, Buies of Circuit Courts, p. 4.

In this case the proponent simply moved the Court for a judgment non obstante veredicto, and the only question for us .to consider is, did the lower Court err in refusing to grant the motion.

“Judgment non obstante veredicto 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 examination of the whole proceedings it appears to the Court that the defendant 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 all better his case.”

Smith, Actions, 161, {Bonvier’s Law Diet. Yol. 1, p. 761.)

“ The judgment non obstante veredicto. This is rendered when the plea confesses a cause of action and the matter relied upon in avoidance is insufficient although found true, to constitute a defense or a bar to the action. This judgment can be .entered only on the .application of the plaintiff made after the verdict -and before the entry of judgment thereon.”

Freeman on Judgments, -p. 7, and numerous cases there cited.

• “ Judgment non obstante veredicto can be entered only after the verdict and before the entry of judgment thereon and upon the application of the .plaintiff when the plea confesses a cause oí action and relies upon matter in avoidance which is insufficient although found true to constitute either a defense or a 'bar to the action.”

Am. •& Eng. Encyc. of Law, Yol. 12, p. 79.

In Black on Judgments, Section 16, a number of examples are given where this judgment may be given. One is : “A plea of tender of rent after the date of its falling due is insufficient, and after -a verdict on such plea in favor of defendant the plaintiff is entitled to judgment non obstante veredicto. But in order that this judgment may be given, it is essential that the plea should distinctly imply an admission of the plaintiff’s right or title.”

Dewey vs. David Humphrey, 5 Pick,, 187, and a large number of cases there cited.

See also Tidd’s Praet., 920.

Unlimited citations might be made on this question in support of the above authorities. By the practice of our Courts judgment non obstante veredicto has been entered for the defendant as well as for the plaintiff, and on the evidence as well as on the pleadings; but tbe rule that such judgment can only be entered when the material facts are undisputed has been adhered to. We cannot find any of the elements of confession and avoidance in the case at bar. The question submitted to the jury was, “Is the proposed will of Kamaka (k) a good and valid will in law ? ” and the contestants claimed that it was not, for the reason that the signature of Nika (k), one of the subscribing witnesses to the will, was a forgery, he not being able to write. To make this will valid it was necessary that it should be witnessed by “ two or more competent witnesses subscribing their names to the will in the presence of the testator.”

Sec. 1465, Compiled Laws, p. 479.

There were two signatures of attesting witnesses to the will in question, one of which the jury must have found to be a forgery. We cannot say .that the evidence sustains this finding, on the contrary the will bears on its face all the evidence of being genuine, and the testimony strongly supports this. And we are of opinion, as we were on the first trial, that the verdict was contrary to law and the-evidence, but the proponent’s counsel, Mr. John Richardson, in the Circuit Court, not having moved for a new trial, we cannot now consider this; we- are confined to the exception certified up, viz., Did the lower court err in overruling the motion for a judgment non obstante ven'edido. We cannot find that there was any error. The case at bar most certainly cannot be made to come into, the class of cases where such a judgment may be given. This is. one of those cases where it would seem that an injustice has been done, but we are helpless to remedy it, for the necessary steps have not been taken to enable us to do so..

CC Creighton, for proponent, appellant.

A. Rosa, for contestants.

The exceptions are overruled.

Dissenting Opinion op

Judd, C. J,

I am unable- to agree with my brethren in this case. I admit that a judgment ‘ against the verdict (-non obstante ' veredicto) is. allowable by the common law “where the plea to the declaration confesses a cause of action in the plaintiff and sets up matter in avoidance, and such matter,, though found true by the verdict of the jury, is insufficient in law to constitute a bar or defense to the action, and the Court will enter a judgment for the plaintiff non obstante veredicto.” 1 Black on Judgments, Section 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 plaintiff’s 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 I find where a judgment non obstante veredido is mentioned,, is Emma Kaleleonalani vs. Hoopiopio et al, 3 Haw., 682 (1876.) 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: “We are asked to enter judgment for the plaintiff-non, obstante veredicto.” After discussing 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 evident from this case that the Court would not have hesitated to enter judgment for the plaintiff if the evidence had justified it. This was not on consideration of the pleadings, but of the evidence. In Kaia vs. Kamaile, (1880) 4 Haw., 352, the case was ejectment. The jury rendered a verdict for defendant for the whole estate. The evidence showed that the parties were tenants in common, and there had been no ouster. The Court, on motion, ordered a judgment to be entered for plaintiff for one-lialf of the land, non obstante veredicto. The Court, per Harris, C. J., say, “ This is undoubtedly a proper judgment, for a judgment non obstante veredicto is a proper judgment whenever on a review of the whole case, in any view of it the defendant’s claim has no merits.”

In Agnew vs. McWayne, 4 Haw., 422, the action Avas to recover from a stakeholder the amount of a bet on a horse race. The trial Judge instructed the jury to find for the plaintiff, but they found for the defendant. The Court in banco say, per McCully, J., “ As the verdict was expressly contrary to the laAv so given and to the uncontested facts, Ave are of opinion that the Court was right in setting aside the verdict, and as there was no question upon the fact that the defendant held the plaintiff’s deposit at the date of the demand, we are of opinion that it Avas proper to order judgment for the plaintiff, non obstante veredicto. Cui bono another trial? There is nothing for the jury to consider and pass upon under the facts and the law as Ave find it.”

Thus far the cases ordered a judgment for the plaintiff. In Makea vs. Nalua, and Kahiuka vs. Hobron, 4 Haw., 227, the Court, per Harris, O. J., ordered a judgment for the defendant, non obstante veredicto. Here the Court found that the relationship proven by plaintiff to the person last seized of the land was not within the statute of descent. The jury rendered a verdict for the plaintiff to which the defendant excepted, and moved for judgment in his favor non obstante veredicto which was granted. So also in Lewis' Adm. vs. Life Ins. Co., 4 Haw., 377, the Court, per McCully, J., say, “As a verdict for the defendant is the only one that would be authorized upon the law and the undisputed facts of this case, we think the proper course now is to order judgment for the defendant non obstante veredicto, and it is so ordered.” Here the plaintiff’s intestate had warranted that at the time his life insurance policy was taken out, he was in good health, and had no serious disease. He had a disease then which occasioned his death in twelve days thereafter. Held, a breach of the warranty, and so plaintiff could not recover. There are five cases of a similar character in 5 Haw, The first is Mahukaliilii vs. Hobron, id., 106. The Court here reversed a judgment for defendant which had been rendered by a Justice in a jury waived case, and ordered a judgment for plaintiff.

On page 371, Mokuhia vs. McCandless, on a question reserved, the verdict being for plaintiff, the Court, per Judd, C. J., ordered judgment for defendant non obstante veredicto.

On page 491, in Kauhikoa vs. Hobron et 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 testator and two others, the defendants’ testator being the survivor of joint disseizors, they were solely entitled to the land. In Rickard vs. Couto, id. 507, the lower court had ordered a defendant, a contract laborer, back to service of plaintiff, the Court, per Judd, C.J., reversed the judgment and ordered judgment for defendant. The last case reported is Kalua vs. Selig, id. 656, where the Court say, “We are of opinion that the trial Justice might properly have ordered, if asked, judgment non ^obstante veredicto”

I think it is clearly settled by the eases above quoted that this Court has exercised the authority to set aside verdicts and order judgments either for plaintiff or defendant, according as the uncontested facts of the case -show them to be entitled to judgment.

I admit that in the case before ijs a judgment for the proponent of the will, notwithstanding the verdict for the contestant, would hardly be justified 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 .further evidence -establishing his case. But I can see no reason why this Court cannot order a new trial. The verdict is admittedly -contrary -to the evidence adduced. -And the evidence on behalf of the -contestant that Nika did not sign his name to 'the will because these witnesses thought he could nó.t write, and .never knew him to write his name, does not disprove the positive testimony of those who saw him write it, .and of -the intrinsic evidence afforded by the will itself. The counsel for the proponent excepted to «the verdict -as contrary to the evidence, and moved for judgment non ■obstante veredicto. It -is-contended that he should have moved for a new trial, and'-because he •did not, .but moved for what was not granted, he has no remedy and this unjust verdict must stand. The Circuit -Judge refused his .motion for judgment notwithstanding the verdict, -which was based upon his exception to the verdict • as being contrary to the evidence. .Exceptions were allowed •to this 'refusal. I am unable to see why this does not bring up to this Court the question whether the' verdict was sustained by-the evidence. If we find .that the-verdict was •erroneous we have the authority .to either, .if the -case warrants it, order judgment for .the proponent notwithstanding the verdict, or to order a new trial. Section 7.7 of the Act to Beorganize the Judiciary provides for this. “ When judgment has been entered-in any case in which exceptions have Been allowed, the judgment may be vacated by the Supreme Court without any writ o£ error in like manner as if it had been entered by mistake, and thereupon such further proceedings shall he had, in the■ cause as to law and, justice shall appertainThis is a reenactment of Sec. 839 of the Civil Code.

Exceptions were allowed in this case and I think it proper-procedure to vacate the judgment, presumably entered for the contestants, and order a new trial. If an exception to the verdict as. contrary to the evidence is sustained, it would follow that the verdict must be set aside, and it depends upon the view of the Court upon the evidence whether a new trial shall be ordered or whether a different judgment shall be ordered.

In short, an exception brought here to the denying* of the motion for judgment notwithstanding the verdict raises, as I think, the question upon which the motion was.founded— whether the verdict ought to stand — and the statute above quoted authorizes us to- order such further proceedings as to law and justice shall appertain, which I think should be a new trial.

The supervision by the Court of the verdicts of juries is in my opinion a wholesome exercise of power,, and is conducive to the public welfare.  