Luka v. Poohina

• Decision Date: 27 October 1876
• Parties: LUKA v. POOHINA.
• Court: Hawaii Supreme Court

3 Haw. 728

LUKA v. POOHINA.

Supreme Court of Kingdom of Hawai'i.

October 27, 1876

October Term, 1876.

Syllabus by the Court

THE provision for proceedings on exceptions to the ruling of the Court, in Sections 834 to 839 of the Civil Code, is not controlled by the provision in Section 1156 for a new trial although the result of exceptions taken may be the ordering of new trial.

S. B Dole for plaintiff.

E Preston and L. McCully for defendant.

Harris and Judd, J. J.

OPINION

HARRIS, J.

At this term of the Court there was a verdict for the plaintiff.

The action was for supplies furnished to the defendant's wife, who was living apart from the defendant. Evidence was offered to show that the wife was living apart from her husband because of his adultery, and had continued to do so for a long time. Evidence was likewise offered to prove that the wife of the defendant whilst so living apart from her husband had committed adultery; and the defendant's counsel asked the Court to instruct the jury " that if the jury find that Kupihea the woman, was justified in separating from her husband, but that she had since lived in adultery, they will find for the defendant, " which instruction the Court refused, and exception was duly noted and finally reduced to writing, and allowed by the judge on the 20th of October, all of which is in accordance with the 836th Section of the Civil Code. And now it is alleged that the exceptions may not be heard, because that if the opinion of the Court shall be that the ruling should have been made as asked, the effect would be that a new trial would be ordered, and that all the requirements of the Section 1156 (new trial) have not been complied with. It appears that every direction indicated by the statute touching exception to the ruling of the Court was followed by defendant's counsel, and it would appear by the perusal of the Sections 834 and 839 inclusive, that the 1156th Section of the Civil Code is meant to apply to a different state of the trial than where exceptions to the ruling of the Court are regularly and systematically noted during the trial. The 1156th Section is meant to apply to motions for a new trial which may come to the knowledge of the party, say, after the case is gone to the jury; as for instance, if the verdict is contrary to law as given by the Court, or contrary to the weight of evidence or the jury misbehaved themselves, or new evidence...