
    KAILIANU AND LEA vs. KAUE, Surviving Defendant.
    Exceptions.
    Hearing, June 25, 1894.
    Decision, October 18, 1894.
    Judd, C.J., Bickerton and Frear, JJ.
    A new trial should not be granted for an erroneous rejection of evidence of such slight importance that there is no reason to believe that a new trial, if granted, would result differently, espeeiallj’ after two juries have already rendered the same verdict.
   Opinion of the Court, by

Frear, J.

This action was begun in July, 1889, and has been tried three times. It is ejectment for land at Kapaia, Hanamaulu, Kauai, covered by B. P. 4823, L. C. A. 3371, to Naehu. One of the two original defendants, Lumai, died between the second and third trials. At each trial there were two issues —descent and adverse possession, the plaintiffs claiming by the former title, the defendants by both titles. The first trial resulted in a verdict for the plaintiffs, but this was set aside on the ground that it was contrary to the evidence on the issue of adverse possession. 8 Haw., 256. At the second trial the presiding 'Justice directed a verdict for the defendants on the ground that the question of pedigree had been settled in their favor by a decree in probate made by Circuit Judge McBryde in 1868. This verdict was set aside on the ground that the Circuit Judge had no jurisdiction to make the decree in question. 8 Haw., 508. At the third trial the verdict was again for the plaintiffs. There wras evidence on both sides of each issue, and, although an exception was taken to the verdict as contrary to the evidence, it was practically abandoned in this Court. The exception now relied upon is to the instruction of the court that “ the jurv should leave out of their consideration the decision of Judge McBryde in 1868, but they are at liberty to consider the testimony of the witnesses before him who have been shown at this trial to have since deceased.”

The record shows that the testimony given in the probate case was read to the jury in this case, but does not show that the decree was offered or put in evidence. The trial judge and counsel, however, evidently regarded it as having been introduced, and we shall so consider it, especially as the result of our decision will be the same.

It is argued that the decree was admissible for what it was worth, not as conclusive or perhaps even prima facie evidence of what it purports to adjudicate, but for certain other purposes, as, for instance, to show the character in which the defendant took possession, or to show an admission or acquiescence on the part of Nika, the principal witness for the plaintiffs, who was also a witness in the probate proceedings and is the father of the plaintiffs who xvex’e then minors, or that he then gave testimony inconsistent with that Avhich he now gives, or that he made-no objection to evidence given then for the present defendaxxt by other xvitnesses, or that he now testifies to facts which those xvitnesses, if living,' could controvert. The trial judge apparently thought that the decree should be either admitted or rejected without qualification, and it does not appear that any middle course like that xxoav suggested by counsel in this Court xvas pointed out to him. At least no instruction to that effect appears to-have been requested.

No case has been cited to us xvhich goes so far as to hold that a decree absolutely void as to all persons is admissible for any purpose xxdxatever, but conceding that such a decree is admissible, not as evidence of the truth of its contents or of the facts on which it was based, but for the purpose of showing the mere fact that it was made and xvhatever is properly inferable from that fact, we do not see that sufficient cause has been shoxvn in this instance for granting a new trial.

A. liosa, for plaintiffs.

A. S. Hartioell, for defendants.

The decree obviously has no bearing upon most of the points above enumerated, suggested by counsel as reasons for its admission. The testimony given in the probate matter was alone relevant on those points, and this, as we have seen, was allowed to go to the jury. And as to the other points, the decree could certainly add but little, if any, to the weight of the other evidence, — so little, indeed, that there is no reason to believe that a new trial, if granted, would result in a different verdict. There have been three trials already in this case, and the verdicts in the two submitted to the jury were both for the plaintiffs. Under the circumstances Ave would not be justified in further prolonging this litigation. New trials are not to be granted for light reasons, especially after so many trials have already been had.

The exceptions are overruled.  