The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1908-11-21

ABUSE OF DISCRETION
QUESTION is DECIDED

had been made to secure them, but
there was every reason to believe that
they would be located within reason
able time, and that the failure to get
hold of all the evidence necessary was
wholly due to the plaintiffs delay in
bringing the suit, and that the time
from the plaintiffs demand was who'll
ly too short to secure the necessary
evidence, scattered as it was in Ja-
pan, on the coast and elsewhere, and
that the time until the next term
would not be too long by due dill
gence to secure the witnesses in de-
position form and ready for trial. with
further immaterial averments as to
plaintiffs having harrassed and an
noyed the affiant by suits,-of w. A.
Kinney, of the firm recently of Kin
ney & Marx, and now Kinney, Marx,
Prosser & Anderson, to the effect that
his firm was retained by the defendant
in an arbitration suit with the plain
tiff relating to differences between the
parties under another tunnel contract
between them, and that the hearing at
the arbitration there was valuable evil
dence, particularly from the plaintiff,
having a vital and pertinent bearing
on many of the issues in the present
action; that the arbitration matter
was settled and that no transcript of
the testimony was called for as it was
not anticipated that the plaintiff would
bring any further suit on said con-
tract; that the affiant was the only
member of his firm conversant with
the arbitration proceeding; that he
left Honolulu on business for Boston
on September 8, being furnished just
before leaving with the plaintiffs de-
mand foreshadowing this action, and
that altogether not certain that the
suit would be brought he made in
quiries in San Francisco for collect
ing evidence upon the subject, and
particularly as to the whereabouts of
one Halverson, who for about a year
had charge in the plaintiffs name of
the performance of the first contract,
and saw Halverson and obtained from
issues raised by the plaintiffs de-
mand; although affiant did not learn
that the suit was brought until his
return to Honolulu October 23, his trip
to Boston being exclusively for pro-
fessional engagements in matters pen
ding before courts in Massachusetts
affecting the interests of clients in Ha-
waii; that upon returning from Bos-
ton he saw Halverson again in San
Francisco, and then learned that
means had been found to locate a
large number of Japanese, ten or
twelve in number, who worked under
plaintiff and under Halverson in per-
forming the original contract, and
that he thereupon retained McClana-
han & Derby in San Francisco to rep
resent the defendant, instructing them
to proceed forthwith to locate the ia
panese and take their dispositions; that
in order to furnish data for McClana-
han G Derby's search for evidence
from the Japanese it was necessary
to furnish them with the evidence TAX
en- before the board of arbitration:
that upon returning to Honolulu afi-
ant found that the transcript of the
evidence had been ordered and was
shortly to be completed, whereupon
copies of plaintiffs complaint and the
transcript were got away by the first
mail after the transcript was furnish