
    THE McBRYDE ESTATE, Limited, v. JANE R. GAY, McH. ROBINSON, A. ROBINSON and F. GAY, partners as GAY & ROBINSON.
    Exceptions from Circuit Court, Fifth Circuit.
    Submitted June 19, 1902.
    Decided July 2, 1902.
    Frear, C.J., Galbraith and Perry, JJ.
    An application for a continuance of a cause is addressed to the sound legal discretion of ithe court.
    Every motion for a continuance should stand on its own merit.
    A circuit judge has no right to make a rule or to follow the practice of allowing a continuance of causes for the term, on payment of costs, without sufficient showing therefor.
   OPINION OF THE COURT BY

GALBRAITH, J.

This cause was at issue for the March, 1902, term of the Fifth Circuit Court. The defendant, not wishing to go to trial, presented a motion for a continuance for the term, supported by affidavits. The motion was opposed by the* plaintiff and counter affidavits were filed. The court after remarking several times during the delivery of his decision, in substance, that the rule, in his court was pretty well settled, of allowing almost as a matter of course one continuance on payment of costs, finally concluded as follows: “On the whole, I am inclined to allow a continuance on the usual grounds, with the usual condition, that the defendants pay the costs that arise in connection with it, as being part of the practice of the court, and the question of the amendment of the answer may be raised later.” Whereupon counsel asked that, if an amendment was sought, it should be confined to new matter. The court then referred to the special circumstances of the ease and added to the said order that 20 days’ notice be given of any motion to amend the answer. The entire order was excepted to by the plaintiff' on the ground that it was an abuse of discretion. The bill of exceptions was presented and allowed by the judge.

An application for a continuance under the practice in this Territory is addressed to the discretion of the court, Sec. 1274, C. L. It has been held by this court that where a ruling on an application fór a continuance is complained of the court will only look into the matter so far as to ascertain whether there was an abuse of discretion. Queen v. Ah Kiao, 8 Haw. 466-8. It is apparent that this discretion ought to be cautiously exercised by the court particularly where so long a time intervenes between the terms as in the Fifth Circuit, and. a strong showing ought to be made to warrant the court in continuing a cause for six months especially before the issues are settled.

“A motion to its discretion,” said Chief Justice Marshall, “is a motion not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.” Trial of Aaron Burr, vol. 1, p, 182.

Every application for a continuance should stand on its own merit. The circuit court under the law has no right to make a rule or to establish a practice allowing a continuance as a matter of course.

Whether the court intended to base the order for a continuance at all on the showing made is perhaps not altogether clear but it is quite evident that he intended to grant a continuance in any event upon what he called the practice of his court. It was manifest error for the court tc grant the continuance on that ground but it is impossible to correct the error at this time. The term having lapsed the case will go over as a matter of necessity. It would be fruitless to sustain tbe exception, and for tbat reason it should be overruled. It is so ordered.

Kinney, Ballon & McClanalmi for plaintiff.

Robertson & Wilder for defendants.

CONCURRING OPINION OF

PERRY, J.

It is not clear from the decision rendered by tbe judge below tbat be based bis ruling, granting a continuance, solely on tbe ground that, as a matter of practice in that Circuit, tbe defendant was entitled to tbe continuance. It would seem tbat tbe court thought tbat on tbe merits tbe motion might properly be granted. Tbe judge said, inter alia, that certain facts related by him showed that “there is considerable obscurity with regard to tbe location of Kuiloa, and, tbat being so, there has not' been any great amount of time granted since suit was commenced for ascertaining where Kuiloa is, and what it is.” One of tbe reasons urged by tbe defendants in support of their application for a continuance was tbat they bad not bad sufficient time to complete a survey of tbe land in dispute. If tbe motion was granted because of this supposed lack of time for preparation for trial, I think tbat it cannot, in view of all tbe evidence then before tbe trial' judge, be said tbat tbe latter abused bis discretion in ruling as be did, whatever our own conclusion might be if tbe application were an original one before us. If, on tbe other band, tbe ruling was based solely on tbe ground of right as a matter of practice, then I concur tbat such ruling was erroneous. In view of tbe fact, however, that the March term of tbe Circuit Cornet of tbe Fifth Circuit has now ended, the exceptions must, in either event, be overruled.  