The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-02-22
Supreme Court of the Hawaiian Islands
In Banco-January Term, 1882.
ROBERT BRIGGS VS.. J. R. MILLS.
Judd, C. j, ltCaiy and Austin j. J.-Opin
ion IF he CoUt By Judd, c. J.


Judd, C. J, AEC,,Ry and Austin j. L-Opin-
ion Of The Cowt by Judd, c. j.
This is an action of the Grim. Con. tried
at the last October Term of this Court The
verdict was for the plaintiff, damages $4,000
The defendant excepted TO the verdict and
moved for a trial on the ground that the
damages were excessive, but this point was
abandoned at the argument The defendant
also took an exception to ruling made at the
trial by the Court, which will be considered
later.
The verdict was rendered on the llth Octo-
Der, and the Court adjourned on the 10Th.
On the 9TH November counsel for defendant
filed certain atiidavits alleging the existence of
evidence newly discovered, of great impor-
lance, objection being made to their being en-
tertained, as being filed too late and this Court
is asked to consider this question.
On this point we hold that either there
should be a separate motion for a new trial
made, if it is founded upon the discovery of new
evidence, or it should be mentioned among
the other grounds in the original motion. Re
ference to the motion on file discloses that
newly discovered evidence is not mentioned,
and no new motion was made. As to the time
of filing such a motion, the Statute, Sec So
of the Civil Code, seems to us to be impeTa-
tive. Ten days are allowed after the rendi-
ton of verdict or judgment which to file
a bond and motion for new trial, "for any
cause for which BY law new trial may and
ought to be granted"
Rule 6, requires affidavits to be filed in
support of motions grounded on facts We
have no doubt that the Court has the power
TO extend the time for filing additional alfida-
Wits in support Of such motion, but the
motion and bond and some affidavit must be
filed within ten days after verdict.
The exception is to the ruling of the Court
in admitting the evidence of Mrs Mills, the
defendants wife, who was called as witness
by the plaintiff.
Sec. 81 of Chap. 80 of the Laws of 1876,
consolidating the rules of evidence, declares
that parties TO an action aud the husbands and
wives Of such parties respectively shall tex
cept as hereinafter mentioned) be competent
aud compellable TO give evidence. Tie ex-
ceptions are mentioned in Sec. So where the
testimony of a defendant in a criminal pro-
ceedIug IS treated, ard in Sec. SO, where it is
enacted st that nothing herein contained
shall IN any criminal proceeding render any
husband competent or compellable TO give
evidence against his wife, or any wife COM
peteut or compellable TO give evidence against
her husband, except in such cases where such
evidence may now be given" and allowing
in criminal proceeding the testimony of hus-
band or wife for the defense.
Briefly, Sec. 81 renders competent and COM
pellable the testimony of wife for or against
her husband in all cases aud Uics uerSd, and
Sec. So excerpts criminal proceedings FROM the
operation of this rule, and in these this testi-
uony is not allowed, except for the defense.
II is urged upon us that this suit is in the
nature OF criminal proceeding We do not
think This is a civil action for damages.
The result of this suit can have no effect up
on a criminal prosecution against the defend
ant. In snch case all the facts would have
TO be proven diiIgtde and without reference to
this suit. If the basis of this action, the de-
PENDANTS adultery with plaintiffs wife, is
made by our law criminal ofiense, it has no
effect to make this action for damages partake
OF the nature of u criminal proceeding.
The evidence of Mrs. Mills, not hing
communication made TO her by her ashland
during marriage, was properly admitted un-
der our law and the exceptions are according
ly overruled
S. B. Dole for plaintiff; R. F. Bickerton and
W. C. Jones for defendant.
Honolulu, Feb, i, 1857