The Pacific commercial advertiser., 1893-04-22
OPINION OF THE COURT BY FREAR, J

This is an action of ejeetment to
recover a piece of land situate at
Waialua, Oahu, the same being 2
part OF the land described in Royal
Patent 585 issued to Kawaihao. The
case was tried at the January term,
1892, OF the Supreme Court, before
Judd. G. j., aud 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-
tion for new trial, based on the fol
lowing grounds:
1. 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 adgerse possession.
g. Newly discovered evidence con-
sistiEg Of the testimony of certain
witnesses upon the Issue of adverse
possession.
f. Error In the charge OF the pre-
siding Justice to the jury that a eer-
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 eyi-
dence, nothing more is claimed by
counsel than that the evidence great
~ preponderated in favor of the
plaintiff on the issue of adverse pos-
session. This of itself is not suffi-
eient to justify court in setting
aside verdict, where the evidence is
conflicting as it is in this case But
upon careful review of the evidence,
we cannot cay that it preponderated
greatly il at all in favor of the plain
tit.
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 diligens 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 grsntor. Surprise is lo5 look
ed upon with favor by courts as a
ground for granting a new triaf. In
the nature OF the case, it is easy for a
defeated party to allege surprise, and
difficult for his opponent to show that
the surprise IS not feigned. a plain
tiff especially shoaId :,e required to
make out a very clear case of sur
prise, for he chooses his 0wn time for
bringing his action, and has ample
opportunity to prepare for the trial,
and in ejectment must rely upon the
strength Of his own title rather than
upon the weakness of his opponents
title. Furthermore, he is able to
protect himself by suffering nom
suit. To entitle q plaintiff to a new
trial on the ground of surprise as to
defense set mp 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
diiIgence have known it, and that he
had sufficient reason to believe that
the defense would not be set up. In
the case at oar the defendants filed
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
1t was competent for the defendants
under the ple,sdings to make this de
tense, and thia the plaintiff must be
presumed to have known as matter OF
law. 1t Gees not appear that he had
sufhcIent reason for supposipe that
this defense would not be made as :
matter OF fact. His affidavit does mo-
show that the defendant misled hin
as to their claim Of title, or even thai
they claimed title in any other waJ
than by adverse possession. He mus,
have supposed that they would o,
might set up some title, and wba
more probably than title by adyers,
possession, especially considering the
frequency of such defenses amons
the Hawaiians. The plaintiff saw,
ne made diligent inquiry. but conf
not ascertain that this defense wonIl
be set up; but he does not set fort,
what he did, SO as to enable The CO. .or :.
to say whether he made d;l;gont pGr =
qulry or not. His mere saw so ;s ~ ~
sufficient. That is a Conclusion - fo
the Court to make from the Fart ~
presented. If he had shown that /
had inquired of the defenden,