The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-02-14
DECEMBER TERM, 1893.

4 decree ordering Commissioner III PAT
tition to sell certain lands at PuoIIc
auction remained unexec .ited TOT sew
eraI wears: iu the meantime, some OF
nc owners sold their interests 20 an
outsiie party. He moved the court 10
rave the decree executed, when several
of The remaining owners hled ulscoh-
tinuance of their bill for partition.
Hold that where the discontinuance would |
resuIt in injury 10 any of the parues II q
- not allowable. That after decree Al
cause cannot be discontinued against
objection.
OPINION OF THE COURT By BIcK-
ERToN, J.
This matter comes here on ap-
neal from the decision and decree
of the Chief Justice, which gives a
full statement of the case and is as
follows: .oo-
ION the DIST February, 1887,
there was filed bill for partition
of certain lands in Kaneohe, Koo-
laupoko, Oahu, the subject of de-
wise by John d. Watson, the father
of the plaintiffs and defendant.
The plaintiffs were Wllllam'
Thomas, John, Henry, Roland,
George, Caroline and Emel!a,
and the defendant was DAVID,
the eldest son of said John H.
Watson.
"A demurrer was interposed and
sustained and the bill amended
and an answer filed and the Court,
having held the parties to be joint
tenants under the will OF D.. u.
Watson. on the 31st December,
1887, a decree was filed by me
ordering that the premises In ques,
ton be sold at public auction and
the proceeds be paid into Court
for apportionment among the par
ties entitled and appointing 3. 4.
Bishop. Commissioner to divide
the estate into suitable lots Tor
such sale and to sell the same, etc.
Mr.. Bishop having declined to as
sumo the duty on the 9TH May,
1888, 1 appointed S. M: kaaukal
Commissioner under the decree
above mentioned with all the pow
ers conferred upon Mr.. Bishop.
"Since that date until the ZZd
September, 1898, so far as the rec
ord shows, nothing has been done
bv Commissioner Kaaukai towards
executing the decree. On this
last mentioned date motion was
made by J. P. Mendonca that the
decree be executed. Mr.. Mendonca
shows by affidavit and profert OF
the conveyances that he has pur-
chased since the decree the inter
ests in the estate in question o.
John and Henry Watson.
"On the 9th September, William
Emelia. Thomas by his assignee
George. Caroline and Roland flee
through their attorney dlscontln
uance of the partition suit. :,
Counsel for Mendonca contend
that the rights of the parties hav
ing been fixed by the decree a dis
continuance of the suit by some o
the plaintiffs is not allowable. Ihl
contention is sound. When dis
continuance would result In lnlur.
to any of the parties it is not allow
able. In Estell V. Franklin, % n
J. l.. 264, it was held that wher
both parties are actors and eacl
has an interest in the verdict tn
Court will not grant leave TO dls
continue against objections. l.
Sweet v. Mitchell, 19 WIS ool
final Judgment had gone agalns
nlaintiff and leave to plaintiff t
dismiss was refused.
"Tn Schmick V. Noel, "a lex
400. the Court say that the right
discontinue is only permissive an
NAV be refused if it will operate
the prejudice of the party as
whom discontinuance is sough
Brown, J., in Holcomb V. HolcomI
% Fed. Rep. ISL, refused dlscoi
tinuance TO u plaintiff
at is a general rule that after
3eorae q cause cannot be discontll
ued against objection. In the ca
before me it would be injurious
Mr. Mendonca who has succeede
TO the rights of two of the Wats6
children to allow a dismissal OF Il
bill. 1t would put him to new III
cation and costs. l therefore q
Cline to allow the discontinuanc
CAS- regards the right OF Me
donca to proceed with the execuil,
of the decree OH motion L hold
has that right. 'Apurchaser OF I
interest of one tenant In COMING
during the tendency of petlti
for partition, becomes a Prlyy
estate with such tenant, and W
be bound by the subsequent JUG
ment of the Court concerning I
art;,;on of the Commissions