
    SUPREME COURT—IN BANCO.
    OCTOBER TERM—1876.
    
      Harris and Judd, J. J.
    
    Luka vs. Poohina.
    The provision for proceedings on exceptions to the ruling of the Court, in Sections 834 to 839 of the Civil Code, is not controlled hy the provision in Section 1156 for a new trial, although the result of exceptions taken may be the ordering of new trial.
   OPINION BY

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 prdve 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 886th Section of the divil 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 be discovered, or any other of the numerous cases for a new trial may be shown. But the law and rights of parties under exceptions to the ruling of the Court at the trial is distinctly laid down in the Sections above referred to from 834 to 839. For instance, if the Court should reserve a question for the consideration of the full Court as is provided in the 834th Section, it would not be seriously contended that all the provisions of the 1156th Section would have to be complied with; or again, if the question should be reserved by the Court on a motion of either party, and the 836th Section is a mere pursuance of the same remedy when the Justice who may hold the Court does not see fit to reserve, the point, whilst the 837th Section distinctly enacts that “upon allowance of such exception the questions arising thereon shall be considered by the full Court.” Whatever may be the effect of the ruling by the Court on the exceptions, the statute is that the Court must consider them; and the 839th Section provides as follows: “When judgment shall have been rendered in any case in which exceptions have been allowed, the judgment may be vacated by the full Court, without any writ of error, in like manner as if it had been entered by mistake, and thereupon such further proceedings shall be bad in the case, as to law and justice shall appertain.” The defendant did not present his exception for allowance until fifteen days after verdict rendered. It is true that by so doing he subjected himself to the chance that the plaintiff would take out execution on the completion of ten days in accordance with the 1155th Section of the Civil Code, and this might have subjected him to the inconvenience of moving for a stay of execution, but as it is, he appears to be rectus in curia.

S. B. Bole for plaintiff.

E. Preston and L. McCully for defendant.

Honolulu, October 27th, 1876.  