The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1908-11-21
ABUSE Of
DISCRETION
Continued from Page one.)

papers first served on the defendant
did not purport to be certified copies
and that he notified the plaintiffs's at.
torney of the mistake, and that he die
not desire to take advantage thereof
and move to quash as he might have
done; that the action was commenced
during the absence of Kinney, the Sc
Nor member of the firm, who wa.
Thoroughly conversant with the matter,
relating to the parties; that about Oc
tober 40 he learned that one Honda
was necessary and material witness
for the defendant, without which the
defendant could not safely go to trial;
that honda was in Honolulu and at.
liant caused him to be served with q
! subpoena to be present at this tern
of court as a witness for the defendant
that Honda told the affiant that he
was a contractor for tunnel work fol-
the defendant at the same time when
such work was being done by the
| plaintiff and under similar conditions
except that Honda got only four dol
lars a foot while the plaintift was get
ting five dollars; that the plaintiff,
owing to inability to carry out his CON
tract and his unfair methods to the
men, was in constant trouble with them
so that ne was unable to carry out
the terms of his agreement with the
| defendant, and that by unfair methods
OF treating the labor and failure to
pay them what they had earned the
plaintiff had acquired such a reputa-
ton among the japanese laborers that
ne could not obtain them at any price.
therefore his work was greatly de-
layed and unskilIfully performed to the
great loss and annoyance of the de-
PENDANT, and that Hondas evidence as
well as that of the Japanese, whose
names are unknown to the affiant, re-
ferred to in Kinney's affidavit as in
California, is material and necessary
to prove that the defendants breaches
of the contract did not occur; that the
aff1ant notified plaintiffs counsel
shortly after arrival at Wailuku about
October rs that it would be impossible
for the defendant to get TO trial at
this term for the reasons stated in the
atfidavits of himself and w. A. Kinney.
The plaintiff filed objections to the mo-
ton on the ground that the affidavits
do not show grounds for a continu-
ance, that the facts expected to be
proved by the witnesses are not set
forth with sufficient particularly and
instead of stating facts mere conclu-
Sions are stated therein; that the af-
fidavits do not show that the evidence
of said absent witnesses is not cumu-
lative or could not be proved by other
witnesses within reach, and fail TO
show due diligence to obtain their
evidence by deposition or otherwise,
and show that the witnesses whose
evidence is sought are beyond reach by
process, and with the exception of
Halverson, whose deposition could be
procured within the two months since
service of summons, are unknown to
the defendant. The plaintiff filed his
own affidavit to the effect that the de-
position of Honda could have been OBJ
tanned with reasonable diligence; that
many of the Japanese who worked
with Honda and for the plaintiff and
under Halverson are now on Maui and
other islands in the Territory; denies
that delay in bringing the action was
due to motives assigned to him in
| Wells affidavit; that he would have
brought the action sooner if it had
been convenient and practicable for
him to do so; that the matters invol-
we'd in the arbitration are different
from those involved in this action and
arose under a different contract; that
the defendant was informed soon after
the end of the arbitration proceeding
that the plaintiff intended to bring this
! suit for damages. Other matters ire
levant to the issue are also set forth.
Lightfoot's affidavit was also filed
by the plaintiff to the effect that Pros
ser, one of the defendants attorneys,
told him about October 20 that the de-
PENDANTS cases were ready for trial
and its attorneys would insist upon
immediate trials and not consent TO
continuances but oppose applications
for continuances, but October 80 Pros
ser told him that the defendant would
be unable to proceed to trial in this
case at the present term; that there
was ample opportunity to take Hon
da's deposition both in Waikiki and
Honolulu.
w. A. Hardys affidavit was also filed