24 Haw. 638 | Haw. | 1919
This is an action to quiet title to certain real estate in which plaintiffs claimed an undivided one-half interest. To the complaint filed by plaintiffs the defendants Kamai and Kila filed an answer of general denial and the defendant Ah Fat answered that he is in possession of a portion of the premises' in question under a lease from William Hopean, the owner of said premises when said lease ivas made.
Trial was had at the October, 1917, term before a jury and resulted in a verdict and judgment in favor of the defendants. The verdict ivas returned October 31, 1917, and judgment Avas entered November 7, 1917. On November 19, 1917, plaintiff filed a. motion for neAV trial on the grounds (1) that the verdict Avas contrary to law and (2) that the verdict Avas contrary to the evidence and weight of evidence produced at the trial. Other grounds Avere assigned which have been abandoned. The October 1917 term of the court adjourned without day November 8, 1917, two days prior to the filing of the motion for new trial. The motion for new trial was orally overruled on the 16th day of April, 1918, to which the plaintiff excepted and on June 5, 1918, a Avritten decision and order overruling the motion for new trial was filed as of April 16, 1918, and a Avritten exception thereto filed on June 15, 1918. The bill of exceptions Avas also filed June 15, 1918, and the defendant suggests that the exception should not be considered on the merits for the reason (1) that more than ten days elapsed between the overruling of the motion and the filing of the bill of exceptions, (2) that the ruling excepted to has been before the court on Avrit of error and (3) that the motion for new trial was filed after the expiration of the term at Avhicli the cause was tried and judgment rendered.
We Avill consider these questions in immerse order.
In the absence of a statute providing otherwise the gen
By this statute we think the inability of the court to set aside its judgments, except where proceedings for that purpose were begun during the term, was removed to the extent that it may now set aside its judgments provided a motion for new trial is filed and the requirements as to bond are complied with within ten days after the verdict, judgment or decision complained of without regard to whether the ten days allowed expires before or after the expiration of the term.
The second ground assigned as to why the exception should not be considered is not well taken for the reason that the writ of error which sought to review the ruling complained of in this exception was dismissed in this court without being considered on its merits. The ruling has not been reviewed by this court and the fact that the ruling now complained of constituted a ground for the ■writ of error which was dismissed affords no reason for not reviewing the ruling on exception.
The first ground assigned as to why the exception should not be considered is likewise overruled.
An appeal filed prior to the filing of the decree appealed
The final question in the case is whether the motion for a new trial should have been granted on the ground that the verdict of the jury is contrary to the evidence. It is claimed by the plaintiffs that the property in question, which is situated at Hamakuapoko, Island of Maui, was formerly owned by one Hopeau; that Hopeau died in the year 1913 and left surviving him as his heirs at law the plaintiffs herein, who are his brothers and the children of deceased brothers, and the defendant Kamai, his widow. The defendant Ah Fat is the lessee of the premises holding under a lease executed by Hopeau prior to his death and his rights are recognized by all the parties concerned.
The only controversy in the trial of the cause in the court below was as to whether the plaintiffs are heirs of Hopeau, deceased. If so they would of course inherit one-half of his property and the widow would inherit the other half. The evidence introduced on the part of the plaintiffs
The verdict of the jury was contrary to the evidence and the exception to the order overruling the motion for a new trial is sustained.