The Hawaiian gazette., 1893-05-23
New trial ordered.

OPINION OF THE COURT BY JUDD. G.
, A verdict having been rendered i
favor of plaintiff in this action,
being in ejectment to recover a par
of the land described in Royal Paten
) No. 1870 to Kekuhaupio, the defend
ant excepted thereto and moved TO
a new trial on the ground that tn
verdict was contrary to law and evi
dence, which motion was denied b,
the Circuit Judge presiding at th'
trial, and exceptions thereto wer
taken and allowed to this Court.
Both the plaintiff and defendan
claimed to be entitled to the lane
by virtue of their relationship to on,
Kapu, who died December %, 1870
each denying the others pedigree
Plaintiff claimed to be grand nephew
of Kapu, and defendant claimed tC
be his grand daughter. The plaintiff
put on evidence to show his own re
lationship 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 of de.
fendant's defense of adverse posses
sion, and claims that it is insuffici-
emily established.
We are met with the objection by
plaintiff g 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 new trial. Citing 134
Mass. 100, 100 Mass. 455, 123 Mass.
367, n 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 a 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 to take exception to this
Court from either the denial or the
granting of motion for a new trial.
This practice has obtained for some
years in this country, and the recent
Act to reorganiZe the Judiciary,
making this Court purely one of ap-
pellate jurisdiction, now removes us
from the delicate position suggested,
of the Court reviewing the opinions
of another member of the same Court
respecting the evidence in a jury
trial. There being nothing in our
statutes or our own presidents
denying this right of excep-
ton we prefer to continue the
practice whether, as in this case, the !
question of law raised by the excep-
ton is the sufficiency of the evidence,
or when the trial Court has directed |
a verdict upon its view of the evi-
dence.
It is urged upon us that the pos
session set up in the defendants evi- |
dence does not have ali the ingredi |
ents essential to establishing a title
by prescription. No one can doubt,
in view of q long series of decisions
in this Court, that mere possession
for twenty years is insufficient to
this defense. The posses
sion must be adverse, hostile, exelu-
siye, notorious and continuous. 1t 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 PEG
pie who brought her son Owen up
aud some people who brought mp her
son Christopher; she put them on the
land there, that is why l say she had
control OF it. After that she leased
the lands, and continued leasing
them until the present time. From
the time of Kspu's death, l have
never known OF kawal or any one
else claiming the land; if 1 had
known anything Of that kind l would
not have concealed it; would have
told her about it. I live right on the
next lot; ny lot is on the Waikiki
side; the lot 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. l know person named Keolu,
she lived there; this woman Keolo
was living there under Mrs. Holt.
Most of this lot was leased or let ont.
accepting small portion that Mrs.
Holt reserved for Keolo, next to her
lot. Mrs. Holt collected the rents
from the tenants that were on these
snds. (Kapahu's testimony