The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1891-01-15
Supreme Court of the Hawaiian
Islands



:. Notice of hearings on the appoint
ment of executors or administrators
shall be given by publication in
such newspapers or newspapers as
the Court may order for three sue
cessive weeks, ETC." The gist of this
requirement is sufcieccy Of notice. The
defendants point is that the notice
which was made, being only signed
by one of the clerks, in this case by
the deputy clerk, is invalid. Section
$50 of the Civil Code says. the Clerk
of the Supreme Court "shall have
power to issue process in all suits
and matters brought before the
Supreme Court or before the Chief
Justice or any Associative thereof at
Chambers" Chapter % of the Laws
of 1884, gives similar powers to the
Deputy Clerk and Second Deputy
Clerk.
l 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 a no
tice may not be strictly a process, it
is in the nature of a process and
must be regarded as within the
powers given to clerks by the law.
Process has two Specifications.
First, it is largely taken for all 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 man is called
into any temporal court" Perry
VS.. Lorillard ms. Co., 6 Lansing
2O4).
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 to the
plaintiff, after the title, proceeds as
follows: " The petition of G. Along
praying for letters of administration
upon said estate to 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 Magoon 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 (blank space) upon
his filing 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-
siderations apply here as there the
said Magoon being SO clearly de-
scribed in other parts of the order
and also in the original petition for
letters of administration as the per
son to whom it was desired and in
tended that the letters should issue,
that the absence of his name as above
shown creates no doubt or uncertain.
ty as to the meaning and intention
of the order. It is substantially the
order of the Justice that letters be
issued to j. A. Magoon, the plaintiff
in this case.
The defendants have quoted a
number of authorities in support of
their plea, showing that court must
have jurisdiction of the subject mat
ter before it 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
the record of the proceedings for let.
ters of administration it does not
apply to this issue.
l therefore override the plea in
abatement upon all the points sub.
mitted by the defendant.
The plaintiffs 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.
It is my opinion that it is not open
at all to the defendant to contest the
appointment of plaintiff as admin
| istrator. While it is true that q want
of jurisdiction in the Court over the
subject matter makes all of the pro-
ceedings and DEGREES of such court
relating to the subject matter void,
yet it is not everyone that can raise
this objection. A defendant to an
action by an administrator, who is
not otherwise interested in the estate,
may not, I think, attack the status
of the administrator in such action.
In the case of Emery, administrator,
VS.. Hildreth, 2 Gray, 231, which was
an action of debt, the Court say: eff
the appointment was voidable, it
could be avoided only by those whose
| rights or interests had been affected
by such appointment. In the ques-
ton who was to be appointed admin
istrator of the estate of the deceased,
the defendant had no legal interest.
He had no place in Court. He could
not have objected to the appointment
of the plaintiff in the Court of pro-
bate, aud a fortiori cannot now. His
rights are not prejudiced by the ap-
pointment of wrong person, be-
cause payment of his debt to such
person, before reversal of the decree
of appointment, would be full pro-
lection to him, and because iudg-
ment in suit by such administrator
would be bar to a suit for such
debt by any administrator subse-
quently appointed" This is par
allel case to the one at issue, and the
Il II