9 Haw. 213 | Haw. | 1893
Opinion of the Court, by
Tbe bill alleges that tbe defendants, through their agent, one Selig, promised one T. A. Lloyd, guardian of John McKeague, non compos, then the husband of the plaintiff,
The defendants, by way of answer, deny the making of either of said promises or agreements, and aver that they made the monthly payments voluntarily, and as a matter of mere charity, and, by way of plea in bar, allege that said Lloyd brought against these defendants his action at law at the July Term, 1891, of the Supreme Court of the Hawaiian Islands, upon said promise alleged to have been made to him, and that upon issue joined therein and trial thereof by a jury at said term, a verdict was rendered for these defendants, and that final judgment was entered upon said verdict, and is now in full force and effect.
The case comes to us upon appeal from a decree of a Circuit Judge of the Circuit Court of the First Circuit, who sustained the plea in bar and dismissed the bill.
The first point raised by plaintiff’s counsel is that the judgment offered in evidence by the defendants in support of
When a judgment has actually been rendered at a term of court and the clerk has omitted to enter it within the time required by rule or statute, the Court undoubtedly has power to order an entry nunc pro tunc at any time afterwards, provided no injury would thereby result to third parties. Black, Judgments, Sec. 130. It is the practice in many jurisdictions for the party desiring such entry, to first obtain an order from the Court. But this is not essential, and it has not been the practice in this country to obtain such order. The practice of the clerks not to enter judgments forthwith, but to take time for them, was recognized by this Court in Bose vs. Smith, 5 Haw., 380. Indeed, this case is direct authority for holding that a former judgment pleaded in bar must be regarded as having been entered upon the rendition of the verdict, whether actually entered or not, inasmuch as it was the clerk’s duty to enter it. In First Nat. Bank vs. Wolff, 79 Cal., 73, and in Bundy vs. Maginess, 76 Cal., 532, it was held that a judgment was properly entered by the clerk after the time within which it was required by the statute to be entered. No injury could result to a defeated party by such entry. It is in his power to move for entry at once, or, to move for an amendment afterwards if the entry is not conformable to the judgment rendered. The judgment could not be impeached collaterally merely because entered nunc pro tunc without an order of the Court. The judgment is also in proper form, although in the
Plaintiff’s counsel further contends that the judgment is not a bar because the present plaintiff was not a party to the former action, and because Lloyd was not the proper plaintiff in that action.
The original promise, if any, was made to Lloyd for the benefit of the plaintiff and her children. It is immaterial whether Lloyd be regarded as a trustee of an express trust, or as a mere promisee to whom a promise was made for the benefit of another. In either case he was a proper party plaintiff. Bliss, Code PL, Secs. 54, 55, 58, 262; Langdell, Contracts, Summary, Sec. 62. In some jurisdictions where a promise is made to one for the benefit of another, either may bring the action in his own name. But a judgment recovered by one would be a bar to an action brought by the other. It is not necessary that the • parties to the two suits should be nominally the same; it is sufficient if they are really and substantially the same in interest. Black, Judgments, Sec. 537. A judgment against one who sues for the benefit of another will bar a second suit by the latter in his own name. Ib., Sec. 538. Rogers vs. Gosnell, 51 Mo., 469.
But it is further contended that prior to the bringing of the action at law a new agreement was entered into by which Lloyd surrendered his trust, and the defendants became trustees in his place for the benefit of the plaintiff and her children, and that consequently Lloyd could not properly bring the former action, and that this suit is not based on the original promise, but upon' the subsequent agreement. The new agreement alleged to have been made between the plaintiffs and defendants could not stand by itself. There was no consideration. A promise cannot be supported by a past or executed consideration. The second agreement or arrangement, if any, must have been made either in pursuance of or by way of substitution for the first agreement. In either case the consent of Lloyd, the promisee in the first
The decree appealed from is affirmed, with costs.