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

ter of common right irrespective of
any statute or rule of court and
disregard of the right by refusing a
continuance would be an abuse of the
discretion to postpone the trial. Take,
for instance, the case of the death
or sudden illness of a material VII
ness. 1t is seldom that counsel would
resist a continuance for that cause,
but it would be a matter for consider
alton whether the evidence was avail
able from another source and was
merely cumulative. A question of
law might arise on the ground that
the evidence which the witness should
have given is merely cumulative to 9TH
er evidence shown to be available.
The appellate court could say whether
it was or was not so and there is no
discretion in the determination of the
matter In this case the cou It denied
the motion on the ground substan-
TALLY that due diligence had not been
shown by the defense; that the nom
cumulative evidence sought was adj
mitted by the plaintiff and that the
evidence not admitted and not avail
able was merely cumulative.
A great deal is said and ought to
be considered concerning the effect OF
the personal attendance of a witness
in place of an admission by opposite
counsel that he would testify as claim
ed. We all understand the advantage
of having a good witness before the
jury, and yet the practice appears to
be that if it is admitted that he would
testify as claimed and that the jury
might consider the evidence as if pre-
sented by the witness that is sufficient
to require the trial to go on.
We are unable to find any capri
cious or arbitrary disregard of any
general principles of law in refusing
the defendants motion, and to illus
trate this fact, / am allowed by Mr..
Justice Wilder to say that he consid-
ers that if the motion had been be-
fore him he would not have been JUS
titled in granting it. On the other
hand, | am authorized by Judge De
Bolt to say that he would have grant
ed the motion and l am inclined to
think that l should have done so. It
appears to all of us that there has
been no lack of good faith on the
part of the defendant or any of its az
torneys. I was much impressed by Mr..
Kinneys showing of the Importance
OF full and thorough preparation of
a defense in such a case and of nor
coming into it in a slipshod haphaz-
ard way; but, as he remarked. diff
erent counsel would look upon the
matter differently. One would rely
more upon a legal defense and take
less care to obtain an elaborate de-
Tense on the facts than another would;
in other words, one is more cautious
than another may be- Now I have
great respect for the habit of elaborate
preparation. 1t is expensive frequent
ly in time, money and effort. but it
tells undoubtedly as any of us know
VINO have had long practice at the
bar. If the senior counsel for the de-
PENDANT had been here when service
of the complaint was made, with his
methods, which we all understand,
OF elaborate preparation. he would not
have neglected any opportunity avail
able to obtain the showing he now
seeks to obtain for the defense if he
then desired the continuance; but he
was absent and did not return for If
ty-three days after the service. Who
was to suffer for his absence? 1t is
the general understanding, l believe,
that engagement of counsel in other
cases in other courts is not an excuse
Continued on page SeVen)