The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-03-23
OPINION OF THE COURT By JUDD, CD

Of Record.
OPINION or THE COURT By JUDD, CD.
The complaint in this case Is as
follows: "Statira A. Newell, Efie j.
Newell, Carolyn a. Newell and
Blanche Z. Newell, the plaintiffs
above named complain Of John nj.
Horner, the defen liant above named
and aver the facts following consti-
tutiDg their cause of action.
That at the time herein stated the
District Court of the Fourth Judicial
District Of the State of California in
and for the City and County of San
Francisco was a Court of general
jurisdiction created by the laws Of
the State of California.
IL
That on the 9Th day of January,
4. d 1878, one Thomas Newell COM
menced his action In said Court
against defendant John III. Horner,
and one L. l.. Beard, by filing his
complaint therein ard causing sum-
mons to be issued, which summons
was personally served on this de,
PENDANT.
III.
That on the 23d day Of April, A.
D. 1879, the said Thomas Newell
recovered Judgment against the
defendant for the sum of two thou
sand five hundred and forty seven
and 57-IOO (S2547 57-1OO dollars in
Gold Coin of the United States with
interest thereon at the rate of seven
per cent. per annum from the date
thereof until paid together with costs
and disbursements incurred In said
action amounting to the sum IF
twenty-six aud 25-100 (S26 % 1OO)
dollars.
That said Judgment has never
boon paid in full, but the following
payments were made thereon by the
defendant, viz: The sum of four
hundred ($400 COZ dollars, on the 9Th
day of August, 1882, snd the further
sum of five hundred $500 00) dollars,
ON the 18th day of January, 1890,
Observation-Disclosures of five hundred
($5OOOO) dollars, on the 2Sth day Of
Sep ember, 1890, leaving unpaid a
part of said judgment amounting
inclusive of interest to the sum of
four. thousand eight and 17-100
(S4OOS 17-1OO) dollars.
V.
THAT thereafter the said Thomas
Newell died, on or about the year
1883, leaving a will wherein and
whereby said deceased among other
property gave and beeueathed said
Judgment to the plaintiffs.
vi
sGTInk h. ,,Iaspf,A, l,u 9haiy
tain deed of assignment dated the
21st day of February, 1888, sold aud
assigned aud set over the said judg-
meDt and the money due Hereunder
to MIR. James A. Low, who is now the
owner thereof and entitled to receive
the proceeds collected thereundsr
and that this action IS prosecuted by
these plaintiffs for the benefit of
their said assignee James A. Low.
VII.
THAT the defendant left the State
of California ON or about the 5th day
of December, 1879, and that be has
remained absent from the said State
ever since said date.
VIII.
THAT though thereto requested
the defendant has failed and neglect
ed and still neglects and refuses to
pay said sum due upon said iudg-
ment as aforesaid and that there IS
now due and owing from defendant
TO plaintiff the said sum Of t$40O8.17
100 four Thousand eight and 17-1OO
dollars.
wherefore plaintiff demands
Judgment against the defendant for
said sum of ($4OO8 I7-100) four thou
sand eight and 1T-10O dollars with
interest thereon until paid and for
his costs of suit and that process
issue in accordance with law"
A demurrer was interposed In the
Circuit Court First Circuit on three
grounds as follows:
First: That said declaration
shows no privity OF contract or of
obligation between said plaintiffs
and said defendant.
Second: That plaintiffs have no
right, as the legatees of the judg-
ment mentioned in said declaration,
to maintain an action thereon In
their own names.
Third: That it appears by said
declaration that the Judgment men
toned therein Is barred aud outlawed
by the statutes of Limitations OF the
State of California, and of the
hawaiian Kingdom, and that no
on"
The demurrer was sustained by
the Court, to which the plaintiffs
excepted.
We were not favored with an
argument on the various points,
plaintiffs counsel concediug that the |
complaint was demurrable in some
respects, hut we were asked to deter |
mine whether administration couId