The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-08-21


sced and operating pipe and iume the line in
by the of Claus Spreckel This done
the suit begun and the have been
without prejudice defenses these proceedings We
why the plaintiff could take continue steps
obtain better title right than had under such
The real difficulty arises with the allegations
and proofs ability agree. The plaintiff alleged that
unable agree with the party parties whose land
it desired acquire such right of way This follows the
language the and sufficient allegation both
defendants But the evidence showed attempt agree with
Sprecke only The Judge having stated above dismissed
the Sprecke upon his his codefend
ant afterwards held such codefendant bound by the
attempt and failure agree with Spreckel namuch it had
acquired the land from him after the of the suit
If the defendant corporation had been defendant the
time the proper would have been have substituted
Claus Sprekes upon the by him and per
haps would have been technically to have done
when the corporation already defendant instead of dis
missing the Sprecke The corporation would then
be bound by the plaintiffs attempt and failure with its
predecessor title We might perhaps properly the
decree sssng the bill Sprecke and leave him party
subject the right substitute the corporation for him and
also the decree granting the plaintiff relief against the
defendant corporation the ground that the evidence showed
that there attempt and failure agree with it. Then
no substitution were made the Circuit Judge might
decree against Sprecke which would bind his grantee the de-
PENDANT corporation and dismiss the the defendant
corporation which would be mmaterial the plaintiff if the
substitution made the Judge might decree against
the defendant corporation standing Sprecke shoes But
is this necessary Would best be through useless
foms2 1t would be the theory that the corporation could
continue the end began claimant irrespective of
the fact that had meanwhile become the 1t would be
hold that it could occupy two positions at the me IN
respect of of which would be bound and respect of the
other of which would be bound neither position being
that of of anyone else The Judge did not make
an order for substitution doubtless because the corpo
alton already defendant He thought of the defendant
then occupying the position previously occupied by Sprecke
This clearly shown by his decision in which he in sub
that if the effect of the order dmng the to
Specke leave the if against the corpora
ton claimant and without regard its subsequent
acquisition of title that order erroneous and he declined to
look upon in that way He would allow the defendant to
take advantage of the form the order which itself had led
him make But without passing upon what the best to
pursue would be the corporation could not be properly
considered substitute for spreckels after the dismissal to
could be bound after the conveyance claim
and owner, say that the statute requires
condition precedent bringing the suit inability agree with
the person persons only whose land &c. and both
alleged and proved in this that the plaintiff unable to
agree with Spreckes before the suit begun and far
appears Sprecke the only that time and it
therefore unnecessary for the plaintiff attempt agree with
the defendant corporation for the that the latter not
conveyance made by defendant after suit because there has
beer no attempt to agree with his grantee
1t further contended that Judgment be rendered
against the defendant corporation because the petition does not
alege that that corporation the of the land lh
based the doctrine that judgments must be
ported by the pleadngs The petition alleges that the land Is
owned by Sprecke and that the defendant corporation aso
claims ownership thereof The corporation did not raise the
question of the sucency of the allegation the petition to
riit h1tr at
in its only by the general allegation that Judgment
be made against the corporation upon any avermen con-
tanned the petition 1t did, however in its specifically
deny that Speck the and aege that il itself was
We may add also that its plea denied that the
plaintiff had been unable agree &c. for fume this
defendants land In Vdss Building Association, 81 n. c.
5 the held that when party brought In the
complaint should be amended accordingly hut said that if the
new party answered when amendment made would be
taken have waived its right the It to that