The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-10-22
SUSTA|NS
THE FEE
Supreme Court
Hands Down
Decision.
SUIT IS FILED
I AGAINST ABLES
KaPiolani Estate Case May Go TO
the Jury Tomorrow-Circuit
Court Notes.

The Supreme Court handed down an
opinion yesterday sustaining Judge
Gears allowance of a $500 attorneys
fee in the case of Desky VS.. The Or
pheum Co. The syllabus says:
"a mortgage provided for an 'attor-
ney's fee to be paid by the mortgagor
in the event of foreclosure proceedings
and the amount recoverable under the
mortgage was in excess of $4,000. Held
that the allowance of a fee of $500 to the
attorneys of the mortgage was not ex-
cessive or unreasonable"
The opinion of the court is written by
Judge Galbraith who says in part:
From this decree the defendant APP
pealed to this court. No transcript
of the evidence is presented, and the
only contention made by the defendant
is that the attorneys fee of $500 al
lowed the attorneys of the mortgagor
is excessive and unreasonable" The
mortgage foreclosed provided that in
case of default in the payment of the
notes therein described the mortgage
might proceed to foreclose the mort
gage land out of the money arising
from such sale or sales the mortgage
or his legal representatives shall be
entitled to retain the sums thus Sc
cured by this mortgage, whether then
due or thereafter payable, including
all costs, charges or expenses incurred
or sustained by him or them by reason
of any default in the performance or
observance of the covenants and con-
ditions of this mortgage, and an at
torney's fee, rendering the surplus, if
any to the mortgagors, it's successors
and assigns Taking into considera-
ton the amount of property involved,
and the responsibility imposed on the
attorneys for the plaintiff in the pro-
ceedings, we cannot say that this al
lowance is unreasonable or excessive.
If this suit had been an action in
assumpsit the statutory attorneys fee
would have been more than the amount
allowed by the judge in this case. The
date fixed for the sale in the decree
having passed it will be necessary for
the circuit judge to direct sale at an
other time.
The decree appealed from will be
affirmed except as to the date of sale
therein named and the cause will be
remanded to the circuit judge for such
further proceedings as may be neceS
sary to enforce the same. 1t is SO Or
dered
C. A. GALBRAITH,
A. PERRY.
Hatch & Silliman for plaintiff: Kin
ney, Ballou & McClanahan for defend
ant
KAPIOLANI CASE NEARING THE
END.
The Circuit Court was occupied all
day yesterday with the case of Kapio-
lani Estate VS.. f. Peck & Co. The end
of the trial appears to be in sight now,
and it may be submitted to the jury to-
morrow. The evidence of defendant
was concluded yesterday morning and
the plaintiff began the Introduction of
testimony in rebuttaI. Probably the
arguments may be reached today. Many
of the retainers of King Kalakaua were
on the stand during the day, among
them Captain Lilikalani. Rev. DR..
| Serene Bishop was also on the stand
yesterday.
NEW SUIT FILED.
| George r. Carter, as administrator of
the estate of L n. Hayden, deceased,
has filed suit in the Circuit Court VS..
L. C. Ables, David Dayton and c. J.
Mccarthy, claiming of them the sum
of sc, sol % for labor done and material
! furnished in the erection of the build
ing known as the Pantheon Saloon on
Fort street The petition alleges that
defendants entered into a contract with
Hayden for the construction of the
building for the sum of $3.50; that he
4 no nc
of So, 713. He also puts in an additional
claim of 1926 for labor performed, OF
which but 81 POT was paid, leaving 9
balance due of $3.OS7, and making the
total amount unpaid. the amount sued
for. Interest," is asked from September
"a 1901.
COURT NOTES.
A bill of exceptions with the partial
transcript of evidence was filed yester-
day by plaintiff in the case of KapTo-
Ilani Estate, Ltd, vs.. A. S. Cleghorn.
W. O. Smith has been appointed adj
mfnistrator of the estate of Eva j
Spencer.
The suit of L. B. Kerr & Co. vs. The
resa Wilcox has been settled and dis
missed.
! \ stipulation has been hled py lhe
attorneys agreeing to the hearing OF
the case of Choy Look See vs.. Roya
Insurance Co by Justices Galbraith and
Perry. In case of a disagreement the
case is to be reargued upon the re
turn of the chief justice.
\ demurrer has been filed by defend
Iants in the case of L. c. Ables vs.. {
]. FaIk. George r. Carter ct al. 1t is
alleged that the petition does not state
facts sufficient to constitute a cause
of effect.
The plaintiffs bill of costs. amount
ing to $317.71. has been filed in the cast
of Harrison vs.. Magoon.
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