The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-05-23


New trial ordered.
OPINION OF THE COURT BIZ JUDD, CD
A verdict having been rendered IN
favor of plaintiff in this action. ii
being in ejectment to recover part
of the land described in Royal Patent
No. 173O to Kekuhaupio, the defend.
ant excepted thereto and moved for
q new trial on the ground that the
verdict was contrary to law and evi-
dence, which motion was denied by
the Circuit Judge presiding at the
trial, and exceptions thereto were
taken and allowed to this Court.
Both the plaintiff and defendant
claimed to be entitled to the land
by virtue of their relationship to one
Kapu, who died December %, 1870,
each denying the others pedigree.
Plaintiff claimed to be grand nephew
of Kapu, and defendant claimed to
be his grand daughter. The plaintiff
put on evidence to show his own re-
fationship and to disprove defend
ants relationship. Defendant also
introduced evidence to show her re-
lationship and to disprove plaintiff s.,
and also evidence tending to show
that she had had possession of the
land since Kapu's death Plaintiff
put on no evidence In rebuttal or de-
fendant's defense of adverse posses
sion, and claims that it is insuffici-
emily established.
We are met with the objection 10y
plaintiff IS counsel that the discretion
exercised by trial Judge in refus-
ing to grant new trial IS not the
subject of exception, as the appellate
Court cannot revise or review the
discretion of the trial Court in refus-
ing to grant a new trial. Citing ia
Mass. 100, 40 Mass. 455, 123 Mass.
367, " Mass. 274, and other Massa-
chusetts cases. We notice that the
right of revision will be exercised
more freely by the appellate Court
where the trial Court has refused
than where it has granted new
trial. 16 Am. & Eng, Encyc. of Law,
519 and cases cited. However the
authorities in other Jurisdictions may
stand on this question, we find moth
ing in our statutes denying the right
Of a party 70 take exception to this
Court from either the denial or the
granting of a motion for a new trial. |
This practice has obtained for some |
rears in this country, and the recent |
let to reorganize the Judiciary, |
making this Court purely one of APP
,eliate Jurisdiction, now removes us
rom the delicate position suggested,
L the Court reviewing the opinions |
I another member of the same Court |
the evidence in a jury |
rial. There being nothing In our !
statutes or our own presidents |
lenying this right of excep-
ion we prefer to continue the
,ractice whether, as in this case, the
question of law raised by the excep-
ion is the sufficiency of the evidence,
u when the trial Court has directed
! verdict upon its view of the evil
lence.
It is urged upon us that the pos
session set up in the defendants evil
1ence does not have ali the ingredi-
ants essential to establishing title
oy prescription. No one can doubt,
IN view OF a long series of decisions
in this Court, that mere possession
for twenty years is insufficient to
establish this defense. The posses
sion must be adverse, hostile, exclu-
sive, notorious and continuous. It is
that the evidence of defend
ant does not show that her possession
was hostile or notorious or continu-
Gus. Following is the evidence on
this point:
After Kapu's death Mrs. Holt had
control of that lot; / know that be-
cause after the death of Kapu Mrs.
Holt put Us people on there, the peo-
pie who brought her son Owen up
and some people who brought up her
son Christopher; she put them on the
land there, that is why / say she had
control of it. After that she leased
the lands, and continued leasing
them until the present time. From
the time OF Kapu's death, / have
never known of Hawai- or any one
slse claiming the land; if I had
known anything Of that kind / would
not have concealed it; would have
told her about it. live right on the !
next lot; nay lot is on the Waikiki |
side; the lot I now own is part of the |
original Kekuhaupio lot. The lot 1 |
own now was bought from Kapu; / |
bought it from Kapu. I am not /
aware that am related to Mrs. Holt |
at all. know person named Keolo, |
she lived there; this woman Keolo |
was living there under Mrs. Holt. |
Most OF this lot was leased or let out.
excepting small portion that Mrs.
Holt reserved for Keolo, next to her
lot. Mrs. Holt collected the rents |
nom the tenants that were on these |
lands. (Kapahu's testimony
After the death of Kapu, Mrs. Holt |
had charge and control of the land. |
The land was put under her control
and charge in 1868 by Kapu, Kapu
told me 80 himself. After his death |
Mrs Holt had charge of the land: |
Ars- holt put some relations there. a
man py the name of Kane and Hoo
mana, and they brought up some of |
her children, Owen and Christonber
and Mrs. Holt has had the land in
possession ever since. (Pua,s testi-
uaon7)