The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-07-19
OPINION OF THE COURT BY BIcKERroy, J

OPINION OF THE COURT BY BICKERTOE, J
This matter comes here on a mo-
ton fled by plaintiff : counsel, which
is as follows:
Plaintiffs motion to restrict order
of new trial.
Whereas their Houors the Justices
of the Supreme Court have signed
and filed In the clerks office their
opinion 10 the effect of authorizing a
new trial in said cause, sustaining
the defendants exceptions 10 the
refusal of the Circuit Court to grant
the same and whereas no order has
been made otherwise than Is con
tanned in said opinion and whereas
the said opinion does not refer 10 the
right of the defendant of a re trial on
the question of his claim to said pro
perry 10y way of Inheritance
Nov the plaintiff moves that an
order for such re trial be made re
stricting the same to q rs-trial of the
defendants claim OF adverse posses
sion"
There is no question that this
Court has power to grant new trial
on certain conditions, and counsel
has cited three OF our Own reported
cases in support of this. First Is
the case of Duncan VS.. Wilder
Steamship Company. In that case
number of exceptions were taken to
the instructions given by the Court
The exceptions as to the defendants
liability were oyerruled and the YER
dict was sustained as TO that branch
of the case; but the exceptions taken
TO the instruction OF the Court as to
the measure of damages were sus
tanned. and the Court say: 1T
seems to ms that the verdict should
be set aside as TO the amount OF
damages aud a new trial allowed to
consider and decide the question of
the amount of damages" The ex-
ceptions In that case were purely
questions OF law.
Second, the case of Gay vs.. Men
donca, z Haw. 293. In that case, by
the special findings In the verdict II
was apparent that the jury had mis-
understood the instructions OF the
Court IN respect to the measure OF
damages, and a new trial was ordered
upon the amount of damages ouly.
Third. the case of Riemschneider
VS.. Kalaehao, 5 Haw. $50. In that
case the Court found that the pre-
siding Judge erred in not instruct
ing the jury as to q certain question
of law affecting one item, viz, of
notes S245 damages set out In the
verdict The items were one car
riage 500, three horses $3.50, notes
S245. The Court found that the
Judge properly instructed the jury
as to the other items, and say: We
therefore hold that a new trial should
be had between the parties unless the
plaintiff RENTS the damages S245
and interest" x That is, the
Court imposed this condition on the
verdict standing.
We are of the opinion that those
three cases cannot be considered as
being Oh par with the case at bar. In
this case the matter comes mp simply
on a motion for new trial on the
ground that the verdict was con-
trary to law and evidence, and the
Court ordered q new trial. The
Court does not find that any part of
the verdict should be sustained.
Who can say upon what issue the
iury came to their verdict? The
Court does not find that the question
of inheritance was settled, but finds
that the defense of adverse possession
was disrrgarded by the jury through
inadverteuce or prejudice. The eff
feet of ordering a new trial was to
apnul or set aside the verdict aud
place the case back where 1t was be
fore a trial was bad
Counsel for plaintiff contends that
the opinion Of the Justices of this
Court is not an order, but only au-
thorizes one being issued by the
Clerk. That granting a new trial
means that a new trial may be had,
or that an order may be taken out
authorizing q new trial, and that
such an order should in some way be
certif d TO the Court In which the
new trial is TO be had; that this can
only be done by remlttltur or by
some remanding order in the nature
of a remitt1tur; that on the filing Of
the opinion the order should be
drafted and submitted, aud when
settled as 10 terms, etc, hled, counsel
then to take their own course IN get
tino the case on the trial calendar OF
the Court below. As regards the
contention that the opinion OF the
Justices is not an order, we are OF
the opinion that it Is an order
The Court does not say that Their
ought to be a new trial. Is IS den
mite and positive order that there
shall be a new trial The language
used is: 1--WE consider that this IS
case requiring the interference OF the
Court and therefore sustain the ex-
captions and order a new trial"
In regard to the rendition or re
mandiug order, we are of the opIn-
ion that the practice coDteDded for
by plaintiff counsel would be good
practice under the new Judiciary
Act. As now when q new trial is
ordered by this Court, the case goes
back to the Circuit Court for trial.
Before January of this year, when q
new trial was ordered it did not 60