The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-05-16

ton S'Sa6sfte tEGe is not permitted To
affect the right OF the other parties
unless the alienation iisablea the
party from performing the decree of
the Court In which case a supple
mental bill is necessary TO bring the
assignee IN. And on page 1865
where, however, the assignment
feAdSate late. is of an equitable interest,
and not as In the case OF bankruptcy
by operation of law, there does not
seem 10 be any absolute necessity
for the assignee TO be brought before
the Court, nor does it seem 30 be
material whether the assignee Is =
plaintiff or defendant 10 the bill. In
such a case, however (unless the
ahenee can be protected by the ordi-
nary course of petitioning for an
order that the alienor may not take
the fund be Is entitled to In the suit
out of Court. without notice to him,
he, the alienee, may make himself
party by supplemental bill" 1t
would appear from this and subse-
quent citations from this author that
the Court could direct simple
order on petition that the alienee
attend the Master under q decree.
In Sedgwick V. Cleveland, Paige,
2S7, cited by defendants counsel, the
complainant had made an assign
ment OF his interest to receiver
under an order made In another
cause and the chancellor held that
the complainant could not proceed
until his assignee was made a party
by supplemental bill. and il the de-
PENDANT wishes in such case to have
the suit preceded with, he should
apply to the Court for an order that
the assignee file q supplemental bill.
Here the transfer was not voluntary
and the Court held that as it was
considered to be by operation of law,
the receiver should file bill in his
own name TO continue the proceed
ings for the benefit of the trust he
was invested with.
A fair inference from this case
would be that where the transfer was
voluntary, as In this case. supple
mental bill would not be necessary.
1t is urged upon us by defendants
counsel that motion can only be
made by party to the cause. This
Is the general rule. But in Callen-
der V. r. r, IL Ohio, St. $50, the
Court says that 1.-The right of making
and being heard on his motion has
been very properly extended by
Courts to those having an interest IN |
the subject matter though not |
parties. This, in actions Of replevin,
and In cases Of distri |
button of money, it has been the |
practice to entertain and hear |
made by persons IN interest, |
'hough strangers TO the record. And |
his office of motion and its extent,
Is thus established by usage in
Courts, is clearly recognized by the
civil Code of Procedure" We see
hat the usage was considered to be
established before the statute was
made. This case Is one OF those
lpon which the following text in Is
1ncycl, of Law, p. 891 is founded
A motion may be made by any
'arty to the record, and this right of
naking and being heard on their
notion has been extended by the
Sourts to those having an interest in
be subject matter, though not
srties."
But In the case before US there was
lore than a mere motion. 1t con-
aimed allegations of fact and was in
ne form of a petition and was sworn
}, and the other party was served
18th a notice OF it. We think that it
lily served the purpose of a supple
rental bill and would bind the
ssignee by its result.
The conclusion we have reached is
lat at the stage In which this case
as it was proper to procure the
of G. A. Spreckles for
laus Spreckels in the manner and
rm as it was done and we find no
pod reason for departing from the
scision in Watson Y. Watson.
The appeal Is therefore dismissed.
T. III. Hatch for plaintiff; A. s.
artwell and G.. W. Ashford for de-
51s
May 9, 1894.