The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-10-24

OPINION OF THE COURT BY GALBRAITH. J.
decree entered by the Circuit Judge in this
follows:
This OF hearing this 9th day August
A. D. 1901 before the Honorable George d. Gear Second
Judge of the Circuit Court of the First Judicial Circuit of the
Territory of Hawaii, at Chambers Messrs Hatch & Siman
appearing behalf of the said plaintiff Charles s. Desy and
Messls Kinney, Balou Il NcCnahan appearing behalf of
the said defendant The Orphem Company Limited and the
having heard the evidence aduced and being fully advised
in the premises and appearing to the court that there
due and owing the plaintiff by the said defendant upon the
several notes and the mortgage securing the set out and
referred to in the plaintiffs complaint file herein the of
S44991 further appearing that default of the pay
of said by the defendant the plaintiff herein the
plaintiff is entitled foreclosure of said mortgage and sale
the premises therein described and entitled have the pro
ceeds of such sale applied the payment of said notes and the
debt secured by said mortgage.
Now Therefore It Is Ordered Adiudged and Decreed that
the said defendant The Orpheum Company Limited pay the
plaintiff herein the said of eight thousand four hundred and
forty dollars and nnetone cents together with the costs OF
this suit taxed the OF sixteen $16O0 dollars and the sum
of five hundred dollars attorneys fees provided for IN SAID
mortgage and aconee fee of $3.50 and in default of the
of said by the said defendant it ordered adudged
and decreed that the premises described in said mortgage, and
herenbelow described be sold public auction by James F.
Morgan Saturday. the oath day of August, A. 1901, at
u o'clock highest bidder for cash. and of the
moneys arising from such sale the plaintiff herein shall retain the
sum of Thirty thousand Five Hundred SXtytwo and 411O0
dollars due upon said promssoy notes and secured by sald
mortgage together with the costs OF this SUIT taxed at sixteen
Dollars and Five Hundred Dollars attorneys fees, and the
of such sale rendering the surplus II any, to the Sald
defendant The Opheum Company Limited It's successors or
The said premises said and here
by ordered to sold aforesaid described by and
bounds. ere follows the description by metes and bounds
Said premises being subject however, certain mortgage
by the said plaintiff Charles s. Deky to the Hawaiian
Evangelical Association in the of Fifteen Thousand Five
Hundred Dollars bearing the of per
per annm payable semannualy and due and payable five
wears the Sh day of May A. D. 1899 and recorded in the
office of the Registrar of Conveyances for the Territory Of
Hawaii on the day of May, y. d. 1899, in Lber 49,
pages 49S-5OO.
And it further ordered audged and decreed that the said
defendant the Orem Company Limited, from thencefOrth
and for do stand absolutely debaed and foecoed of and
all right title and equity of redemption of in and
o the said mortgaged premises"
From this decree the defendant appealed this Court No
transcript of the evidence presented and the only contention
defendant that the attorneys fee of $500 allowed
the attorneys of the mortgage Is excessive and unreasonable
The mortgage forecoscd provided that of default in the
payment the notes. therein described, the mortgage might
proceed orccose the land of the money arising
such sale sales the mortgage his legal representatives
shall be entitled retain the thus secured by this
gage whether then due thereafter payable including all costs
charges expenses incurred sustained by him them by
of any default in the performance observance of the
and conditions of this mortgage and attorneys fee
rendering the surplus if any the morgagors its
and assigns Taking into consideration the property
involved and the responsibility imposed the attorneys for the
plaintiff III the proceedings that this allowance Is
unreasonable excessive. If this suit had been in
amrs the statutory attorneys fee would have been
than the amount allowed by the Judge in this
The date fixed for the sale in the decree having passed it will
be necessary for the Circuit Judge direct sale another time
The decree appealed from will be affirmed except as to the
date of sale therein named and the will be remanded
the Circuit Judge for such further proceedings as may be neces
il OO1YlpTp