The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1896-01-14

which is merely cumulative; nor for the
admission of new witnesses known at the
time Of trial, but TO procure whose at
tendance due effort was not made; mol
for the admission of new witness al
though unknown at the time of trial un.
less Che testimony which such witness
would give is shown by an affidavit of the
witness himself or unless good cause is
shown for the absence of such affidavit.
OPINION OF THE COURT, BY FREAR, j.
Caroline A. Laing sued for divorce
from her husband, Robert Laing, on
the grounds OF extreme cruelty and
non-support, and he, by cross-bill, sued
for divorce from her on the grounds OF
extreme cruelty and habitual intern
perance. The Circuit Court granted
her q divorce on both OF the grounds
set up and $1s 90 per month Alimony
until further order, but refused him q
divorce, and refused his motion for q
new trial based on the ground OF
newly discovered evidence. Excep-
tons were taken to these rulings.
The evidence shows . chronic state
OF domestic discord between the par
ties resulting not infrequentiy In the
exercise, Of personal violence upon
each other, perhaps chiefly on the
husbands part; also more or less ad :
dictfon TO the use of Intoxicating
drinks, chiefly on the wife's part; and
his ultimate desertion from her and
failure To support her. Whether the
evidence is such as to eDtitle one
or the other or each or neither to q
divorce is question upon which
there is room for considerable differ
euce of opinion. 1t is unnecessary for
us to state to what conclusion We
should probably come, If the case was
before us de nOVo, for we must con-
slider the decision of the trial court in
the light OF a verdict of jury, and,
there being sufficient evidence to sup
port it, we cannot reverse it. Kill
kina v. Hake, Haw. 603.
The amount of alimOny rests in the
sound discretion of the trial court un-.
der all the circumstances of the Case
and is subject to modification on ex
ceptions for cogent reasons only. 1D
this case each party bad little prop
erty in q foreign country, none. here.
He had until lately been in receipt of
q salary of $1,000 per month but has
since been out of employment; she
has and has bad no employment.
There were no children by this mar
rage; by former marriages she had
one child and he two children. The
parties have been married only about
two years. Each has been greatly at
fault. In February, 1895, he agreed
to pay her $25 90 per month during an
agreed separation for four months
In view Of these facts undoubtedly
~ = T. In, htoh he 70 oh
receive but little alimony, and the
Circuit Judge expressed himself in
effect as OF the same opinion, and in
allowing SIS per month until further
order be allowed what he considered
Just under all the circumstances, and
we cannot say that be abused bis dis.
erection. Lazarus ". Lazarus, 8 Haw.,
352. The wife's needs and the hus-
bands capacity as well as her faults
are to be considered-even in the case
of a divorce by husband from his
wife for her fault-that she may not
be suddenly thrown upon the world in
a helpless condition and become
burden to others. The amount of ali
mony is subject to change by the trial
court. We are also informed that Mrs.
Laing has offered, and Is still willing,
to accept S25 for counsel fees and $3.50
for herself in lieu OF alimony
The motion for new trial on the
ground of newly discovered evidence
is based solely on AL affidavit by Mr..
Lsing that five certain persons, nam
ing them, would, il new trial should
be granted, give certain testimony
which is set forth. The evidence is,
at least for the most part, merely
cumulative. The testimony which it
is claimed four of the persons would
give is not newly discovered. 1t
was known to Mr.. Laing and his
counsel, and the witnesses were ex-
pected to be present at the trial, but
they were not subpoenaed, and due
effort was not made to procure them,
and no request was made for q con-
tipuapce so that the persons might be
brought in, but, on the contrary, the
case was submitted apparently on the
belief that their testimony was not
needed. AS to the remaining person,
without commenting on the fact that
the events to which she is supposed to
be willing to testify took place after
the commencement of the suit, and
are such as would not be likely to
have effected different result if they
had been in evidence, we need merely
call attention to the fact that there is
no affidavit by herself as to what she
would testify, and no excuse shown
for the absence of such an affidavit.
Mr.. Laing's affidavit, so far as it re-
lates to this person, appears to be
based on hearsay merely. The motion
was properly overruled. Lopez v.
Kaisikawaha, Haw., q; Napahoa
v. Chinese Union, z To-, 379; The
King V. Makamaka, Id. 1874.
The exceptions are overruled.
w. A. Kinney for c. A. Laing; E.
P. Dole and G. A. Davis for K. Laing.
Honolulu, January 8, 1856.