The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-01-11

OPINION OF THE COUHIJ.B FHEAHJ )
Caroline A. Laing sued for divorce
rom her husband, Robert Laing, Oh
she grounds of extreme cruelty and
aon-support, and he, by cross-biIl, sued
for divorce from her on the grounds oil
extreme cruelty and hahitual intern
perance. The Circuit Court granted
her a divorce on both Of the grounds
set up and SIS 90 per month alimOny
until further order, but refused him a
divorce, and refused his motion for a
new trial based on the ground of
newly discovered evidence. EXcep-
tions were taken to these rulings.
The evidence shows chronic state
Of domestic discOrh between the par
ties resulting not infrequently in the
exercise OF personal violence upon
each other, perhaps chiefly on the
husbands part; also more or less adj
dietiOn to the use of Intoxicating
drinks, chiefly on the wife's part; and
his ultimate desertion from her aud
failure To support here Whether the
evidence il such as to eDtitle one
Of the other or each or neither to a
divorce is a question upon which
there is room for considerable differ
ence of opinion. 1t is unnecessary for
rs to state to what conclusion we
should probably come, if the case was
before US de lOUO, for we must con-
slider the decision of the trial court in
the light OF verdict of jury, and,
there being sufficient evidence to sup
port it, we cannot reverse it. Kill
kina V. Hake, 8 Haw. SOB.
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-
eeptions for cogent reasons only. 1n
this case each party had little prop
erty in foreign country, none here.
He had until latelr been Ia receipt OF
, salary of $1,000 per month but has
since been out of employment; she
has and has had 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
BWo years. Each has been greatly at
fault. In February, 1895, he agreed
20 pay her $25 90 per month during an
agreed separation for four months.
In view of these facts undoubtedly
this is q case in which the wife should
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
5nst under all the circumstances, and
we cannot say that he abused his dis
eTetiOD. Lazarus v. Lazarus, 8 Haw.,
$52. 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
n helpless condition and become a
burden to others. The amount OF ali
nony is subject to change by the trial
eOurt. We are also informed that Mrs.
Iaing has offered, and is still willing,
10 accept S25 for counsel fees and $3.50
Scr herself in lieu of aHmony.
The motion for new trial on the
ground of newly discovered evidence
g based solely on an affidavit by MIR.
AIaing that five certain persons, nam
ing them, would, If new trial should
De granted, give certain testimony
which is set forth. The evidence is,
ut least for the most part, merely
cumulative. The testimony which 1t
- 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 subponaed, and due
effort was not made to procure them,
and no request was made Tor q con-
tinDaDce so that the persons might be
brought in, but, on the contrary, the
ease was submitted apparently on the
belief that their testimony was not
needed. AS to the remaining person,
without commenting on the fact that
abe events to which she is supposed to
be willing to testify took place after
she 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
eall attention to the fact that there is
no affidavit by herself as to what she
would testify, and no excuse shown
sOr the absence OF such an affidavit.
Mr. Laing's affidavit, so far as it re-
Iates to this person, appears to De
based on hearsay merely. The motion
was properly overruled: Lopez ".
Kaiaikawaha, Haw., q; Napahoa
y. Chinese Union, H., 379; The
King V. Makamaka, ID. 394.
The exceptions are overruIed.
w. a. Kinney for G.. A. Laing; E.
Dole and G. A Davis for r. IaiDg.