The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-08-15
OPINION OF, THE COURT BY PERRY, ].

This action of. eecment Instituted and tried in the
Circuit Court of the Fifth Judicial Circuit The land in dispute
an irregular strip containing acres adjoining
the kuleana awarded to Kanakan by L. c. A. 23S U R.
T. ao2 1t was undpued the trial that the paper title the
property IN controversy originally the plaintiff and that
the title to the uleana the defendants the sole issue
tried whether the defendants and their predecessors
IN interest had acquired title to the strip by adverse
possession The jury rendered verdict defendants
The plaintiff excerpts the verdict the ground that
contrary to the law and the evidence and the weight Of evidence
and also to the overrulng pro forma of new
trial No exceptions noted by the plaintiff the charge
of the given the jury the presid
ing judge give certain requested After an
examination of the transcript of the enographers notes.
of the that there ample evidence support
under the law laid down by court verdict rendered
Questions OF the credbly of the witnesses and of the weight
of their testimony solely for the jury determine Under
the circumstances the verdict cannot be disturbed
The plaintiff also moved for trial on the further
grounds of surprise and of discovered evidence After
argument the trial Judge denied the motion. The alleged
prise consisted in the fact that Pau who called
witness by the plaintiff gave testimony different essential
particulars from that which he had previously led plaintiffs
counsel believe he would give Assuming that this con
stuted surprise within the technical meaning of that ern
trial be granted therefor The testimony
planned of given the afternoon of Friday the 18th of
March last Immediately after leaving the witness stand Pau,
clearly appears from the afdav filed by the plaintiff
support of the motion under considerations said counsel for
the plaintiff that his testimony was, by of mapprehen
sion of the questions asked incorrect and and requested
counsel to ask the court that he Pau be permitted to
his testimony, expressing the time his willingness and desire
correct it. Although the not submitted to the
jury until the afternoon of the Monday following counsel for
the plaintiff neither offered recall the witness give
him opportunity correct his testimony, moved for
continuance took other steps avert the
of the unexpected evidence Counsel the contrary fit
speculate the chances of favorable verdict Having
done the plaintiff abide by the consequences; by his
conduct he has waived such right he otherwise might have
had to the relief sought See, this general subject
IA Encyc P. & Pr, 1885, 74S 749; 16 Am & Eng EncycL
Law 542 543 Delnas Martin, 80 Cal 557; Grant Pope
oy Is Ind 3D. TAiee Ry. Co., 140 Mo- 1885, 339; Ames
Houdrd Sunni 1872 quoted with approval in Flint o. ms
Co., II Fed 222; Willard Wheherbee, n FL. 119, 1873;
Dauidson a. Wheeler II r. 43, 1876; and Lopez Kaiaikd
raha, Haw. q, 80, 80
The subject newly discovered evidence has not been
ferred argument and, ground for rele Is to be re-
oaed as The of exceptions taken dur
inc the trial rulings questions of the admissiblty of
ence and this these exceptions also
sidered.
The exceptions overrued.
~ F. Prosser for plaintiff