The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-10-27

OPINION OF THE COURT BY FREAB, J.
This action was begun in July,
1889, and has been tried three times.
1t is ejectment for land at Kapaia,
Hanamaulu, Kauai, covered by X. Z.
1923, l.. G. A. 1911, to Naehu. One
of the two original defendants,
Lumai, died between the second and
third trials At each trial there
were two issues-descent and adverse
possession, the plaintiffs claiming by
the former title, the defendants by
both titles. The first trial resulted
in verdict for the plaintiffs, but
this was set aside on the ground that
it was contrary to the evidence on
the issue of adverse possession.
Haw. 256. At the second trial the
presiding Justice directed verdict
for the defendants on the ground
that the question of pedigree had
been settled in their favor by a de-
cree in Probate made by Circuit
Judge McBryde in 1868. This YER
dict was set aside on the ground that
the Circuit Judge had no jurisdiction
to make the decree in question. 8
Haw. sos. at the third trial the ver-
dict was again for the plaintiffs.
There was evidence on both sides OF
each issue, and, although an excep-
ton was taken to the verdict as con-
trary to the evidence, it was practic-
ally abandoned in this Court. The
exception now relied upon is to the
instruction of the Court that The
IL ~ fhnIr ncI6
GRAFTON the decision of Judge Nc
Bryde in 1868, but they are at liberty
to consider the testimony of the
witnesses before him who have been
shown at this trial to have since de-
ceased"
The record shows that the testi-
mony given in the probate case was
read to the jury in this case, but
does not show that the decree was
offered or put in evidence. The
trial Judge and counsel, however,
evidently regarded it as having been
introduced, and we shall SO consider
it, especially as the result of our
decision will be the same.
1t is argued that the decree was
admissible for what it was worth,
not as conclusive or perhaps even
prtma facie evidence of what it pur-
ports to adjudicate, but for certain
other purposes, as, for instance, to
show the character in which the de-
PENDANT took possession, or to show
an admission or acquiescence on the
part of Nika, the principal witness
for the plaintiffs, who was also a
witness in the probate proceedings
= he fafhAr <,f 4h4 III
who were then minors, or that he
then gave testimony inconsistent
with that which he now gives, or
that he made no objection to evil
dence given then for the present de-
PENDANT by other witnesses, or that
he now testifies to facts which those
witnesses, if living, could controvert.
The trial Judge apparently thought
that the decree should be either adj
mitted or rejected without qualifica-
ton, and it does not appear that any
middle course like that now suggest
ed by counsel in this Court was
pointed out to him. At least no in
struction to that effect appears to
have been requested.
No case has been cited to US which
goes so far as to hold that decree
absolutely void as to all persons is
admissible for any purpose what
ever, but conceding that such q de-
cree Is admissible, not as evidence of
the truth of its contents or of the
facts on which it was based, but for
the purpose of showing the mere
fact that it was made and whatever
Is properly inferable from that fact,
we do not see that sufficient cause
has been shown In this instance for
granting a new trial.
The decree obviously has no bear
ing upon most of the points above
enumerated, suggested by counsel as
reasons for its admission. The testi
mony given In the probate matter
was alone relevant on those points,
and this, as we have seen, was allow
ed to 60 to the jury. And as to the
other points, the decree could GER
tsinly add but little, if any, to the
weight of the other evidence,-so
little, indeed, that there IS no rea-
son to believe that a new trial,
If granted, would result in a differ
ent verdict. There have been three
trials already in this case, and the
verdicts in the two submitted to the
jury were both for the plaintiffs.
Under the circumstances we would
not be justified in further prolong-
ing this litigation. New trials are
not TO be granted for light reasons,
especially after so many trials have
already been had.
The exceptions are overruled.
A. Rosa for plaintiffs; A. S. Hart
we'll for defendants
Honolulu Oofcbor IS 1904