In re Estate of Kamaka

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. [246] 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 [247] 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 [248] 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.