The Hawaiian gazette., 1891-07-28
In the Supreme Court Of the Ha-
Waiian Islands.
In Banco.
July TERM, 1891.
KAHEANA (K.) vs.. NALIMU wi.
BEFORE JUDD, c. j., BICKERToN AND
DOLE, j. j.; M'CULLY, j., ABSENT.
On exceptions to an order overriding
motion for new trial.

On exceptions to an order overruling
motion for new trial.
~ A motion for new trial on the ground
that defendant has discovered new and
material evidence, overruled, it APP
pearing that though aware of the plain
tiff7s claim before the the trial, defend
ant used no diligence to procure evil
dence to rebut the same.
(2) An examination of the evidence shows
that the verdict is sustained by consid-
cradle and definite testimony.
OPINION OF THE COURT PER JUDD, C. J.
At the special term of this Court
March, 1891, we held that the defend
ant had complied with the statute
and rules respecting the perfecting
of motions for new trials and ordered
the parties to be heard on the merits
Of the motion.
Mr.. Justice Dole heard the motion
in vacation and on the Sd July filed
his decision overruling the same, to
which exceptions were taken by de-
fendant; and the matter was argued
before the Court in Banco.
Having examined the evidence In
the case and the afidavits on file, we
are Of the opinion that the decision
and Judgment Of Mr.. Justice Dole
denying new trial should be
affirmed, which is
Done accordingly.
Honolulu, July q, 1891.
DECISION OF DOLE, j., APPEALED FROM.
This is a case Of eiectment, and
the verdict was for the plaintiff. The
defendant moved for a new trial
upon the following grounds:
l. That the defendant has dis
covered new and material evidence;
and
2. That the verdict of the jury
was contrary to law and the weight
of the evidence.
On the second ground there is no
question that the evidence made an
issue for the jury and that in finding
verdict for the plaintiff, they were
supported by both considerable and
definite testimony.
As to the newly discovered evil
dence, the principal affidavit is by
Loe (w.) who names different par
ents of the plaintiff than those men
toned at the trial. This if proved
at the trial of the case would defeat
the plaintiff. But the defendant or
her counsel knew long previous to
the trial that this plaintiff was
claimant of a part of the estate
which she received from her hus-
band, as his uncle. This appears in
the probate proceedings of her hus
bands estate in 1889, in which the
petition states that Kaheana as uncle
to the deceased is an heir, and lives
at Keel, South Kona, Hawaii, and
the clerks notes show that w G.
Achi made an appearance for Ia
heana, uncle of deceased" MIR. Rosa
appeared at the same proceedings as
counsel for the widow, this defend
ant. The plaintiffs counsel further
shows by affidavit, that before the
trial of this case, he furnished MIR.
Rosa, defendants counsel with the |
pedigree or family tree showing |
Kaheana's relationship to the de-
ceased. Defendants counsel cannot |
therefore claim to be taken by sur
prise by the evidence in the case on
this point. Under the circumstances
it does not appear that the defen
dant has exercised a reasonable dill
gence in preparing her case. 1t was
her duty to procure avail
able testimony as to the plaintiffs
parents and to search in Kona, his
home, for such information. There
is no evidence that any attempt has
been made on her part to procure
evidence on this point from that
locality. The Court in Clement VS..
Cartwright 9th Haw. 67S) say, on a
similar motion, ga party must use
due diligence to procure all the i'm
portant evidence that exists, be must
search for it wherever there is
probability of finding it."
The defendant asks for new trial
in order to put in testimony that
she ought to have put in at the first
trial, and which she might have had
then, SO far as anything appears to
the contrary.
The motion is overruled upon
both grounds.
w. G. Achi and E. johnson Tor
plaintiff; A. Rosa for defendant.
The Kitchen.