The Hawaiian gazette., 1894-02-13

OPINION or THE COURT By BICK.
ERToN, J.
This matter comes here on APP
peal from the decision and decree
of the Chief Justice, which gives 3
full statement of the case and is as
follows:
"On the Dist February, 1887,
there was fled a 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 William,
Thomas, John, Henry, Roland,
George, Caroline and Emelia,
and the defendant was David,
the eldes; son of said John D.
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 J. ID.
Watson, on the S1st 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 s. Z.
Bishop, Commissioner to divide
the estate into suitable lots for
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. N. Kaaukai
Commissioner under the decree
above mentioned with all the pow
ers conferred upon Mr.. Bishop.
"Since that date until the 22d
September, 1898, so far as the rec
ord shows, nothing has been done
by Commissioner Kaaukai towards
executing the decree. On this
last mentioned date motion was
made by ]. 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 OF
John and Henry Watson.
"On the 9th September, William,
Emelia, Thomas by his assignee,
George, Caroline and Roland filed
through their attorney discontin-
uance of the partition suit.
"Counsel cor Mendonca contends
that the rights of the parties hav-
ing been fixed by the decree a dis
continuance of the suit by some of
the plaintiffs is not allowable. This
contention is sound. When dis
continuance would result in injury
to any of the parties it is not allow
able. In Estell v. Franklin, 80 n.
J. L. 264, it was held that where
both parties are actors and each
has an interest in the verdict the
Court will not grant leave to dis
continue against objections. In
Sweet V. Mitchell, 10 Wis. 551,
final judgment had gone against
plaintiff and leave to plaintiff to
dismiss was refused.
I'm Schmick V. Noel, 81 Tex,
400, the Court say that the right to
discontinue is only permissive and
NAV be refused if it will operate to
the prejudice of the party as to
whom discontinuance is sought.
Brown, J., in Holcomb '. Holcomb,
% Fed. Rep. ISL, refused a discon-
tinuance to a plaintiff.
at is a general rule that after
decree a cause cannot be discontin-
ned against objection. In the case
before me it would be injurious to
Mr.. Mendonca who has succeeded
to the rights of two of the Watson
children to allow a dismissal of the
bill. 1t would put him to new liti-
CATION and costs. therefore de-
cline to allow the discontinuance.
"As regards the right of Men
donca to proceed with the execution
of the decree on motion l hold be
has that right. 'Apurchaser of the
interest of one tenant in common,
during the tendency of petition
for partition, becomes q privy in
estate with such tenant, and will
be bound by the subsequent judg-
ment of the Court concerning the
nartition of the Commissioner
IL Encycl. Law, p. 719. A pur-
chaser pendentc lite is bound by the
result of the suit.
aHart V. Steedman, 50 Mo. ASP
Edwards V. Dykeman, 50 Ind.
500.
partridge v. Luce, sc Me, l6;
"Waddell V. Waddell, SO Mo.
S3S.
Il do not think that bill OF re-
IGOR is necessary In this case. The