The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-07-18
OPINION OF THE COURT
BY JUDD. c.. ].


The bill herein was fled in the Cir
cult Court, First Circuit, on the 18th of
last March. 1t prayed for an account
ing the appointment of receiver, etc.
The case involved the construction of
two certain deeds of trust made by Mr..
c. Along, the father of the complain
ants and husband of the principal re-
spondent.
Demurrers were interposed which al
legged, inter ala, that Mr.. G. Along was
a necessary party; also that Mrs. Hen
rietta c. Whiting and Tony Along, chill
dren of the said G. Along, were neces-
sary parties. All these are absent from
this country. Other grounds of demur
rer were made, which raised questions
not now necessary to consider, and the
construction of the trust deeds as to
the ownership of the surplus income
from the trust fund, and the decision
upon this point would determine the
question OF respondents liability to ac
count The Court below sustained the
demurrers on all the points, finding G.
Along, Mrs. Henrietta G. Whiting and
Tony Along necessary parties, and that
the surplus income was Mrs. Julia G.
Afong's, and allowed the compliments
to amend and file an amended bill in
compliance with it's decision. The COM
plainants appealed to this Court.
On the case coming up for argument,
the compliments moved to have the
case continued until the next term of
the Court, which motion this Court,
after argument, denied. The complain
ants then filed an abandonment of their
appeal against the decision sustaining
the demurrers, that Mr.. Along, Mrs.
Whiting and Tony Along were neces-
sary parties, and accepted the decision
of the lower Court on this issue, but
without prejudice to their appeal upon
all other issues raised by the demur-
rers and decided adversely to them be-
low
We find here an anomalous condition
of affairs. There are conceded on all
sides to be necessary parties to this
litigation, whose interests are involved
and who are not made either parties
complainant or respondent herein, and
who have had no opportunity to be
heard upon the matters decided by the
lower Court. This Court cannot under
take to hear and determine questions
affecting the interests of these absent
persons, unless they are made parties
and have had an opportunity to come
L. L
allow the compliments to amend their
complaint by adding the parties found
to be necessary, without prejudice to
compliments right of appeal upon the
other substantial questions raised upon
| the deeds of trust. To require the COM
plainants to amend their bill by alleg-
ing therein the Courts construction
| of the deeds of trust, as indicated in it's
decision, could not have been intended
by the lower Court in requiring in it's
decree that the amendments should be
made ''iR compliance t0ith the decision
rendered herein
We hold that the case should be sent
back to the Circuit Court, First Circuit
with the direction to allow the bill to be
amended by making Mr.. G. Along, Mrs.
Henrietta G. Whiting and Tony Along
parties, and that they be allowed to be
heard by the said Court, if they shall
so desire, with leave to take such ap-
peal from the decision to be made by
the Court as they may be advised, with
out prejudice to the right of the present
complainants to thereafter present
their appeal before this Court upon all
questions raised other than the non
| joinder of the parties.
| Decree accordingly.
Costs of this appeal to be paid by
compliments.
We call attention to the fact that
| Mary Along, who first appeared by a
next friend, has had her name stricken
from the bill as party complainant, and
is not a party at present.
Messrs. Kinney & Ballou for COM
plainants: Messrs. Hartwell, Thurston
& Stanley and A. G. NJ. Robertson for
respondents.
Honolulu, July 8, 1896.