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

by the plaintiff that he was employed
by the plaintiff in the Waihee ditch
tunnes as foreman during a large por-
ton of the time that Halverson was
there, and that many Japanese labor
ers working there are now on Maui
Inc plaintiff also filed his statement
that he admitted that Honda if present
would testify to all the facts which the
ahdaYit Of Prosser shows that he
would testify to, and that Prosser's af-
hant (affidavit) might be read in evil
dence in so Iar as it showed what
Honda's evidence would be and to
have the same effect as if testified to
IN court. Also that the witness Hal
version If present would testify to the
TACT as set forth in Kinneys affidavit
as HaVersonB tevJdence, and that
kidneys affidavit, so far as it sets forth
what Halversons evidence would be,
may be read as the deposition and evil
dence of Halverson at the trial.
Counter attidavits were filed by the
defendant OF Fennallow going further
into statements made to him by Hal
version and of Wells that he could not
except in general way give state
ments made by witnesses to him, but
that he knew that they would testify
as GAINED by him; that Halverson's
evidence would not be cumulative since
he would testify to conversations with
the plaintiff and to matters and things
coming to his knowledge as foreman
in charge of the ditch tunnels part of
the time covered by the complaint, and
that during Halverson's employment
he was the only person familiar with
the English language employed there
and was person of intelligence whose
evidence would be received with res
pect and carry great weight, and that
he only could testify to conversations
had with or directions given by the
plaintiff concerned the work; that he
was anxious to go to trial at this term
but yielded to advice of counsel that
he could not safely do so, and fur
Their as to conversations with Honda
and the atlantis surprise to hear of
Honda's contemplated departure so
that he had onIy time to notify his
Honolulu agents twenty-four hours be-
fore Honda left the island (of Maui)
on his way to Japan, and further that
Honda as a contractor of similar tun-
mel unply tup,Yld taotif,y that Io bo1 ,f
ten visited plaintiffs tunnels and was
familiar with his methods during times
not covered by Halverson's evidence.
Other facts bearing upon the case are
mentioned in the opinion of the court.
ORAL OPINION.
HARTWELL, C. J. A statement of
the case will be filed later and the
court does not for that reason delay
to announce its decision now, which
is that it is unable to find legal
grounds for reversing the ruling of the
judge denying the defendants motion
for continuance. Statement append
ed
In cases where it is claimed that
there was abuse of discretion it is
sometimes possible and sometimes it
is impossible to lay down clearly de-
fined rules to control an appellate
court Definitions of abuse Of discre-
tion are frequently found. That of
Chief Justice Marshall adopted in Peo-
pie " Vermilyea, Z Cow. 1863, is a fairly
exact definition although not covering
all the cases of abuse of discretion.
Disregarding known rules of law on
any subject on which there are known
rules would be error whether called
abuse of discretion or not.
A continuance is frequently a mat