The Hawaiian gazette., 1888-11-06

ceptions rendered to the Court by
the new counsel which was finally
allowed rs of the 4th May.
By THE COURT.
Upon an examination of the evil
dence in the case, we find that there
was abundant evidence that the Pa
lea from whom plaintiff claimed was
not the Palea to whom the land was
patented, and under whom defen-
dauts claim, For this reason 3 new
trial on the ground that the judg-
ment was contrary to the evidence
is refused.
On the second ground, of newly
discovered evidence. the affidavit in
support is by Wailele, husband of
plaintiff, who deposes that "since the
trial he has discovered the evidence
of one Hikaalani (w), resident of
Kailua, Oahu, which will establish
the facts that the Palea alleged TO
be the owner of the land in question
was born at Waimanalo, and not at
Kailua, that he is related by blood
to Napahoa defendants wife that
he left Waimanalo and came to Ho-
nolulu and lived upon the land in
question, that said Hikaalani was
born at ksilua aforesaid, and has
always lived there. that she is now
about sixty years of age, and that
she never knew of a man by the
name of Palea belonging to Kailua
aforesaid, that said Hikaalani is at
present at kailua aforesaid, which is
a long way from Honolulu, and the
road thither IS very bad and de-
ponent is unable to procure her aft
davit within the time allowed for
filing a motion for new trial of this
cause, but that deponent will be able
to produce her at new trial of this
cause. That deponent did not, nor
did Napahoa, know of the existence of
said evidence at the time of the trial,
and could not by the use of the ut
most diligence have discovered or
produced it upon the former trial"
In the case of Walker vs.. Grimes.
l Haw. Rep. 81, this Court held that
+" to support a motion for new trial
on the ground of newly discovered
evidence, there must be an affidavit
of the witness himself as to what he
will testify to in order that the Court |
may Judge of its materially" This
was affirmed in Re Will of Hewa-
hewa, 2 Haw. Rep. 165, and the
Court say that applications like the
present for a new trial should be |
accompanied by affidavits of the |
witnesses to the newly discovered |
unless good cause is shown
why such affidavlts have not been
This rule has never been
to our knowledge by any
decision of this Court |
except that in Briggs VS.. Mills, 4
Haw. Rep. 451. the Court say that
= we have no doubt that the Court
has the power to extend the time for
fling additional affidavits in support
Of such motion for a new trial on
the ground of newly discovered evil
1enceh but the motion and bond and
some affidavit must be fled within
sen days after the verdict"
The excuse for not fling the aft
lavit of Hikaalani as set forth in Wal
ele's affidavit is that she resides in
Aailua, say fifteen miles from Homo
ulu, and that she is sixty years of
.ge- This reason might possibly be
leemed good for not produing her
Ifidayit within the ten days after
he judgment, but no further time
vas asked within to obtain it, and
hough nearly six months have
lapsed since then. it is not yet
iffered to the Court.
Counsel relied upon Wailele's aff-
laYit as sufficient. We are obliged
o hold that it was not and therefore
yerrule the exceptions.
a. Rosa for plaintiffs; C. Brown
or defendants.
Honolulu, October 8, 1883.