The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-04-25

OPINION OF THE COURT BY kkEAk, J,
This is an action of ejectment to
recover a piece of land situate at
Waialus, Oahu, the same being a
part of the land described in Royal
Patent 5S5 issued to Kawaihao. The
case was tried at the January term,
1892, of the Supreme Court, before
Judd, G. j., and jury, and resulted
in verdict for the defendant. The
case comes to this Court upon excep-
tions to the refusal of the presiding
Justice to grant the plaintiffs mo-
ton for new trial, based on the fol-
lowing grounds:
l. That the verdict was contrary
to the law and the evidence.
2. Surprise of plaintiff in the de-
Tense set up by defendants of title
by adverse possession.
g. Newly discovered evidence con-
sisting of the testimony of certain
witnesses upon the issue of adverse
possession.
4. Error in the charge of the pre-
siding Justice to the jury that GER
tain sheriff's deed on an execution
sale did not pass legal title because
the District Court judgment, on
which the execution appeared to
have been issued, had not been dock
eted in the Supreme Court.
5. Newly discovered evidence that
said judgment was rendered by Cir
cult Judge.
As to the ground that the verdict
was contrary to the law and the evil
dence, nothing more is claimed by
counsel than that the evidence great
ly preponderated in favor of the
plaintiff on the issue of adverse pos
session. This of itself is not suffi-
cient to justify a court in setting
aside verdict, where the evidence is
conflicting as it is in this case. But
upon a careful review of the evidence,
we cannot say that it preponderated
greatly if at all in favor of the plain
tiff.
The second ground for the motion,
namely, surprise as to the defense of
adverse possession, is supported by
an affidavit, in which the plaintiff de-
poses that he had made diligent in
quiry as to the ground of defense
relied upon by defendants, but could
not ascertain that they relied upon
adverse possession, and that he un-
derstood it was conceded by every
one that up to eight years ago the
land was in the possession of plaintiff
and his grantor. Surprise is not look
ed upon with favor by courts as a
ground for granting a new trial. In
the nature of the case, it is easy for
defeated party to allege surprise, and
difficult for his opponent to show that
the surprise is not feigned. A plain
tiff especially should be required to
make out a very clear case of sur
prise, for he chooses his own time for
bringing his action, and has ample
opportunity to prepare for the trial,
and in eiectment must rely upon the
OF his own title rather than
upon the weakness OF his opponents
title. Furthermore, he is able to
protect himself by suffering a non
suit. To entitle plaintiff to new
trial on the ground of surprise as to
a defense set up by the defendant, it
must appear clearly that the plaintiff
not only did not know Of the defense
but that he could not by reasonable
diligence have known it, and that he
had sufficient reason to believe that
the defense would not be set up. In
the case at bar the defendants fled
an answer OF general denial. There !
was no law or rule of court requiring
them to specially plead or give notice
Of the defense of adverse possession.
II was competent for the defendants
under the pleadiDgs to make this de-
Tense, and this the plaintiff must be
presumed to have known as matter Of
law. 1t does not appear that he had
sufficient reason for snpposing that
this defense would not be made as a
matter of fact. His affidavit does not
show that the defendant misled him
az to their claim Of title, or even that
they claimed title in any other way
than by adverse possession. He must
have supposed that they would or
81