The Hawaiian gazette., 1891-01-20

Chambers" Chapter - of the Laws
of 1884, gives similar powers TO the
Deputy Clerk and Second Deputy
Clerk.
/ consider that these statutes in
comforting upon the clerks the
power of issuing process in all suits
and matters brought before the
Supreme Court or before any JUS
tice thereof at Chambers have
given them authority to make and
publish, according TO the Rule of
Court above quoted, a notice OF the
hearing of a petition of letters of
administration; for while such no
tice may not be strictly a process, it
is in the nature of q process and
must be regarded as within the
powers given to clerks by the law
. Process mas two signifcations
First, it is largely taken for al the
proceedings in any action or prose
cution, real or personal, civil or
criminal. from the beginning to the
end; secondly. that is termed the
process by which a man is called
into any temporal court" Perry
vs.. Lorillsrd ms. Co, 6 Lansing
20A.
The third point made against the
validity Of the plaintiffs letters OF
administration is that there Is no
order appointing the plaintiff as such
administrator. The order under
which letters were issued 10 the
plaintiff, after the title, proceeds as
follows: =" The petition of c. Along
praying for letters of administration
upon said estate 10 be granted to j.
Alfred Magoon coming on this day
to be heard. due proof was made"
and then after recital of matters
proved. goes on TO say, THAT the
said j. Alfred Msgoon appears COM
petent to perform this trust. 1t is
ordered that letters of administration
on the estate Of said Chun Lung
issue to the said Cblank spaced upon
his fling an approved bond in the
sum of $4,000" The same careless
ness Is apparent here that has been
noticed In the original petition in the
same proceedings, and the same con-
siderstions apply here as there; the
said Msgoon being SO clearly de-
scribed IN other parts of the order
snd also in the original petition fer
letters of administration as the per
son to whom 1t was desired and in
tended that the letters should issue,
that the absence Of his name as above
shown creates no doubt or uncertain
~ as TO the meaning and intention
Of the order 1t Is substantially the
order Of the Justice that letters be
issued to J. A. Magoon, the plaintiff
II this case.
The defendants have quoted a |
number Of authorities in support of /
their piea.showing that court must |
have jurisdiction of the subject mat
ter before 1t can make valid DEGREES
affecting such matter. and that it is
essential that all material facts
should be alleged. This is good law. /
but under my findings in regard to I
the record Of the proceedings for let
ters Of administration ii does not
spply to this issue.
l therefore oyerrule the plea in
abatement upon al the points sub
mitted by the defendant.
The plaintiff counsel also makes
the point against the plea that it is
not open TO the defendant in this
way TO contest the plaintiffs appoint
ment as administrator.
1t is my opinion that it Is not open
at all TO the defendant TO contest the
OF plaintiff as admin
istTator. While 1t Is true that q want
Of jurisdiction n the Court over the
subject matter makes al Of the pro
and DEGREES Of such court
relating TO the subject matter void.
yet II Is not everyone that can raise
this objection. 4 defendant TO an
action by an administrator. who Is
not otherwise interested in the estate.
may not. l think. stack the status
Of the administrator in such action.
In the case Of Emery. administrator.
vs. Hildreth. 2 Gray, 81. which was
sn action Of debt. the Court say: If
the appointment was vOidable. II
could De avoided only by those whose
rights or interests had been affected
by such appointment. In the cues
ton who was to be appointed admin
lstratOr OF the estate of the deceased.
the defendant had no legal interest.
He had No place II Court. He could
not have objected 70 the appointment
Of the plaintiff IN the Court Of PRO-
bste- and & foTfi0ri cannot now. His
nights are not preiUdieed BY the ap-
DOlntment OF wrong person. be
eause payment Of his debt 10 such
person. before reversal OF the decree
of appointment. would be full pro
.ection 10 him. and because Z jadg-
nent IN s suit by such administrator
would be bar TO { suit for such
iebt by sn! administrator subse-
luendy sppointed-n This IS par-
allel case 70 the one al issue. and the
'ame principles spply. 1t Is mat
er OF indifference 70 the defendant
I the case before the Court whether |
he plaintiff Is legally appointed or {
lot II 3 judgment which nav be
endered against him IN these prur
VIII be bar to al future :
ults upon the sane subject matter.
| he case OF RO6erIgss - Fast Rsxar ]