The Hawaiian gazette., 1906-11-16
BROWN wins
LONG FIGHT

Brown has won out, in this Terri
tory, in the long fight for Hilo water
front property. 1t Is said that the
spreckelses will appeal to Washing
ton.
in a unanimous opinion of the SUI
preme Court, written by Chief Justice
Frear. the judgment Of the First Cir
cult Court is affirmed in the case of
Charles A. Brown vs John ID. Spreck-
els, Adolph 3. Spreckels and G. August
spreckels, partners under the name of
j. u. spreckes Bros, and A. G.. Ser
rao. D. Lycurgus, s. c. Guerrero, w.
C. Borden. w. X. Akana, Wing Sing,
Kwong We Kee, c. Aho, Peter Miguel,
Tang Sing and Mrs. John Warehouse.
The judgment affirmed is for paint
iff Brown.
into its firth page, the opinion of the
court occupies 20 pages of typewrit-
ing. g.
This case has been tried over and
over again, in three circuits and more
than once in each of two circuits, as
the following historical sketch at the
beginning of the opinion shows:
This is an action of ejectment for
two pieces of land, referred to as the
Bates and Kalaeloa lands, on the wa
terfront at Hilo. 1t was begun in the
fourth circuit in 1899 At the first trial
the jury disagreed. At the second
nonsuit was ordered, which was set
! aside by this court GA Haw. 399. AT
the third trial. in the third circuit, to
which the venue was changed, the jury
! disa greed At the fourth trial. in the
| first circuit to which the venue was
| changed, the jury disagreed. 1t was
then held that the venue had not been
/ changed from the fourth circuit on the
theory that the order for the change
was void owing to disqualification of
the Judge, but this court held other
wise and directed by writ of manda-
mus the court in the first circuit to try
tile case Q6 Faw. 476). Then after
long and careful trial the plaintiff OBJ
tanned verdict which the defendants
now seek to have set aside on writ of
error"
]. A. Magoon and ]. Lightfoot for
the plaintiff. w. A. Kinney and S: NJ.
Ballou KINNEY McClanahan & Derby
and Balou & Marx on the brief for
the defendants.
1t was on the last of the trials that a
question of publication in the papers
arose. The Bulletin published a report
of remark made by Judge De Bolt,
trying the case. in the absence of the
jury while ruling on motion for a
directed verdict in favor OF the
plaintiff. In declining to grant the mo-
ton. as there was still a doubt in his
mind, .he said that, should the jury
render verdict for the defendants and
should motion to set aside that YER
dict be made, he might do SO.
Upon an Advertiser reporters, inter-
viewing the judge on this report. the
latter admitted its accuracy. saying he
made the remark to save the time of
counsel in arguing for the, motion
When, the same day, the judge re-
quested the jury not to read the, papers
of that afternoon and next morning.
counsel for defendants said they had
no objection to allowing the jury to
| read the papers. Judge De Bolt then
| withdrew the request, but there was a
| row over the publications next morn
ing.
The Supreme Court finds no reason
for saying that the judge erred in
everything the motion for new trial
on the ground Of such publications.
Judge De Bolt had taken the waiver of
defendants to publicity as 1t was made.
With regard to the contention that the
Advertiser article was far more dan
gerous thar that in the Bulletin mas
| much MS 1t contained an interview
with the Judge etc, the court COM
ments on the fact that no complaint
was made about the Advertiser article
before the case was submitted to the
jury. Indeed the court says, sit
would probably have been easy to have
prevented the morning paper from re-
ferring to the matter at all; at any
rate, apparently no attempt was made
to do So"
Afidavits of the Jurors that the
newspapers had not Influenced them
should not have been admitted on the
motion for new trial. the opinion
says, adding: IF the trial Judge had
based his decision upon them the re-
suit at most would be not the re-
versal OF the verdict and the ordering
OF new trial, but the reversal of the
decision on the motion for new trial
and remand of the case to the judge
for passing again upon that motion.
But apparently the decision was UNI
influenced by these affidavits and
would have been precisely the same
If they had been rejected and in our
opinion that decision was right"
LAW OF THE CASE.
Following is the syllabus of oplnion
"A deed of release. when made for |
*tt+stt+t+
Porter S. Siebenhauer, Mrs. S. Sic |
oenhauer, Miss Elsie Siebenhauer. NJ |
$, Stein, Mrs. NJ $, Stein. Miss Stein