The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1895-11-22
OPINION OF THE COURT, BY FREAR, J

OPINION OF THE COURT, BY FREAR, j
This Court having on the lltt
of last July filed a decision nc
which reference is hereby made
for a statement of the case affirm
ing the decree of the Circuit Judge
that the plaintiff has no interest
in the property known as the Crl'
terion Saloon. the plaintiff now
moves that a decree be made In
conformity with such decision
but that such decree reserve TO her
liberty to apply to the Circuit
Judge for leave to file a bill OF
review on the ground of newly
discovered matter.
Assuming. but not deciding,
that il is the better practice Tor
the Appellate Court to reserve
upon a proper showing such lib
erry as is asked for rather than
for the lower court 10 entertain
such application without liberty
reserved here. We are of the opln-
ion that a sufficient showing has
not been made in this instance.
The alleged newly-discovered
matter is: ~ that the property
on Fort Street was conveyed TO
the plaintiffs testator by two
deeds. - that at the time of his
death there were only two leases
of the property outstanding, the
several portions thus granted and
leased being shown by new map.
and ~ that the testator had been
in the habit of calling this proper
" the yard" and that shortly
before his death he had told the
plaintiff that the yard was TO be
kept for her except the blacksmith
shop"
Upon examining the deeds,
leases and map. we find that one
deed covers the front portions of
the Blacksmith and Germania
Market premises and small part
of the Criterion Saloon premises,
and the other the remaining front
part of the Criterion premises as
one lot and the rear portion of all
the premises as another lot; also
that one lease covers the Criterion
Saloon premises and the other
the Germania Market premises.
This strengthens rather than
weakens the former findings. for
il tends TO show that the testatOr
considered the Germania Market /
premises and the Criterion Saloon |
premises as separate. 1t is i'm
material that the boundaries of |
the demised Germania market |
premises do not exactly coincide
all around with those of the Ger
mania market building. As to the al
legged new matter relating TO "the
yard" we do not think that it
would have altered the result if
il had been before the court at the
hearing.
But aside from the effect of the
alleged new matter. it seems to
us that upon the facts before us
on this motion the matter cannot
be considered new. New matter
for which bill of review may be
filed must be not only newly-dis-
but such as could not by
reasonable diligence have been
in time to be available
at an earlier stage of the case. In
this case. the matter as to 1.-The
yard was known to the plaintiff.
and the deeds and leases were
open TO the inspection of herself
and her counsel.
Granting leave of the nature :
asked for is within the sound dis
erection of the court. and We are of
the opinion that justice does not
require that such leave be reserved
in this instance.
\ decree will be made in con,
formity with the decision filed
without reservation.
\. :. Hartwell for plaintiff: W.
A. Kinney for defendants.
Honolulu, November Is. 1895.