Paris v. Magoon

| Haw. | Mar 17, 1903

OPINION OF THE COURT BY

FREAR, C.J.

This motion for a rehearing is based on the ground that the court overlooked in its opinion, mite, p. 613, a point duly argued and submitted. The point is that Fernandez was not obliged to make a further drive at all after the cattle driven the first time had been turned out with Paris’ consent, as it is contended. This point, it is urged, is the one vital point in the case. But in defendant’s eighteen page brief it was not even mentioned and according to the best of our recollection it was not mentioned at the lengthy oral argument. The point was raised by the exceptions but so were a great many other points that were not argued. The court cannot go through numerous exceptions and decide upon- them all when apparently they have been abandoned by counsel. It is true that the statement of facts in the brief and perhaps at the argument included facts upon which the point of law might be based but the court is not bound to raise for itself and decide all points that the facts might suggest when counsel ignore them. The two points chiefly relied on were those of res ad judicata and that the contract died with Fernandez. ' A third point was briefly touched on, that a further •drive could not be required by Paris unless he first tendered the expenses. All these points were considered and decided in the former opinion. The point now relied on was not duly, called .to the attention of the court.

Kinney, Ballou & McOlanahan for plaintiff. J. A. Magoon and J. Lightfoot for defendant.

The motion is denied.