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 defendant’s motion for continuance. (Statement appended.)
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 defined rules to control an appellate court. Definitions of abuse of discretion are frequently found. That of Chief Justice Marshall adopted in People v. Vermilyea, 7 Cow. 369, 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.
*254A continuance is frequently a ni|atter of common right irrespective of any statute or rules of court and a disregard of the right by refusing a continuance would be an abuse of the discretion to postpone the trial. Take, for instance, the case of the death or sudden illness of a material witness. It is seldom that counsel would resist a continuance for that cause, but it would be a matter for consideration whether the evidence was available from 'another source and was merely cumulative. A question of law might arise on the ground that the evidence which the witness should have given is merely cumulative to other evidence shown to be available. The appellate court could say whether it was or was not so and there is no discretion in the determination of the matter. In this case the court denied the motion on the grounds substantially that due diligence had not been shown by the defense; that the noncumulative evidence sought was admitted by the plaintiff and that the evidence not admitted and not available was merely cumulative.
A great deal is said and ought to be considered concerning the effect of the personal attendance of a witness in place of an admission by opposite counsel that he would testify as claimed. We all understand the advantage of having a good witness before the jury, and yet the practice appears to be that if it is admitted that he would testify as claimed and that the jury might consider the evidence as if presented by the witness that is sufficient to require the trial to go on.
We are unable to find any capricious or arbitrary disregard of any general principles of law in refusing the defendant’s motion, and, to illustrate this fact, I am allowed by Mr. Justice Wilder to say that he considers that if the motion had been before him 'he would not have been justified in granting it. On the other hand, I am authorized by Judge DeBolt to say that he would have granted the motion and I am inclined to think that I should have done sa It appears to all of us that there has been no lack of good faith on the part of the defend*255ant or any of its attorneys. I was much impressed by Mr. Kinney’s showing of the importance of full and thorough preparation of a defense in such a ease and of not coming into it in a slipshod, haphazard way; but, as he remarked, different counsel would look upon the matter differently. One would rely more upon a legal defense and take less care to obtain an elaborate defense on the facts than another would; in other words, one is more cautious than another may he. Now I ha,ve great respect for the habit of elaborate preparation. It is expensive frequently in timfe, money and effort, hut it tells undoubtedly as any of us know who have had long practice at the bar. If the senior counsel for the defendant had been here when service of the complaint was made, with his methods, which we all understand, of elaborate preparation, he would not have neglected any opportunity available to obtain the showing he now seeks to obtain for the defense if he then desired the continuance; hut he was absent and did not return for fifty-three or fifty-four days after the service. Who was to suffer for his absence? It is the general understanding, I believe, that engagement of counsel in other cases in other courts is not an excuse for granting continuances; if it were where would parties litigant he? The senior counsel staled very vividly where they would he when he said that if counsel in fifteen or twenty cases, equally important, had to show due diligence and he ready for trial in all of them at the same time an impossibility would he required. Of course it would he. This would mean that the plaintiff or the defendant, as the case miffht he, would have to await- his turn until other cases in which the same counsel were engaged had received his attention. The excuse is properly not recognized.
What the defendant could have done upon service of the complaint is not for this court to say, hut it is clear to ns that the absence of its senior counsel is cause of the continuance being asked and that it would not have been required if he *256had been here giving his professional attention to the matter from his point of view. It was not until November 5, a considerable time after the term opened on October 21, that counsel felt that the continuance was requisite, — for what reasons it is not for this court to say. It appears from the affidavit of the defendant’s form|er manager, Wells, that he wanted the trial at this term, being about to go away for a foreign trip, and that counsel had not decided to ask a continuance when one of them at the opening of the term told the plaintiff’s attorney that they should insist on going to trial. It might well have been a question of balancing the advantages and disadvantages of a trial in the absence now of a principal witness or in the possible absence of Wells at the March term. What was in the mind of counsel we cannot say, but we know that after service of the complaint September 10, the answer being due September 30, on September 29 twenty days’ extention of time to answer was requested by the defendant’s attorneys and agreed upon by the plaintiff, the order extending the time being made September 30; that the answer due October 20, under the order extending the time, was complied with by filing the answer October 19, and that no suggestion of a continuance was made until the filing of this motion November 5; that Mr. Kinney left Honolulu Septemjber 8 and returned October 23, presumably leaving San Francisco October 16 or 17.
It may be that some of the grounds on which the court denied the motion present questions of law which we could consider and if we did not agree with its view of them we could reverse his order, as, for instance, on the subject of cumulative evidence; but due diligence is in many cases one of those general terms.difficult to bring within any rules of law. The fact that the judge exercised his discretion without any apparently improper motive or from caprice, but upon consideration, as far as -we can say, of the facts, makes it impossible for this court to say that he abused the discretion, no matter what any *257one of us would have done if the case were before us in the first instance.
R. P. Quarles for plaintiff. W. A. Xvrmey and R. B. Anderson for defendant.Upon the undisputed facts we could not say that the judge abused his discretion, but, going further, what right have we to say that he believed the affidavits on the one side or those upon the other. I quite believe the statement of Mr. Kinney that he considered further time to he necessary for the defense and that a transcript of evidence before the arbitrators was needed in order to prepare interrogatories for Halverson. The trial court may have thought otherwise. How do we know what lie thought, as his ruling was based partly upon his view of the facts and partly upon his view of the law ?
As to the authority of this court h> review exceptions to granting or refusing a continuance, Queen v. Ah Kiao, 8 Haw. 467, affirms the jurisdiction in cases showing an abuse of discretion. The same position, after several previous decisions declining to consider such exceptions, is taken in Isaacs v. U. S., 159 U. S. 489. Earlier decisions, beginning with Woods v. Young, 4 Cranch, 237, were that such matters were not reviewable,
I may have omitted considerations that influenced the court in its decision and will ask Mr. Justice Wilder and Judge DeBolt to mention any that occur to them, whether in accord with what I have said or not.
Wilder, J.My view has been stated by the chief justice, and while agreeing with him that no abuse of discretion has been shown, I.go a little further and think that the trial judge decided the motion correctly, the same as I would have done if the motion had been presented before me in the first instance. Consequently I feel quite clear that the exceptions should be overruled.