The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1902-02-25

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The Supreme court handed d1eH
ihrer opinions yesterday aHirmnr OBS.
lCifcult Jadres in teo of the eases and
f,tcrsine iudre Gear in the THIRD.
NO BIg rEEs 90
The supreme court in an opinion by
1.-The chief Justice severely rebukos Oh,
lpiactlce ~ allowing exorhitant fees oui
uf estates The points Involved ate in-
teresting In that very often there 81
dispute as to the proper fees o. be- al
llowed commissioners. guardians ana
auctioneers. In this ease, Schllef vs..
clark. Judge Gear allowed W. T.. Fish
or an auctioneer's fee of SliiS Tor sell
ing the same property three times. the
aggregate Of all three sales being 500
2o5 Henry Smith. as guardian of the
Schlief minors. appealed from the or
ldeg allowing the aucuoneer's fee, as eN-
| orbitant. The court IN It's opinion,
says:
| The Judge allowed the commissioner
! $500. the auctioneers Sll4S20. counsel $3.50.
each OF the two guardians sl5l, besides
costs of advertising, costs of court. etc.
! 1t is contcnded first that as the Judge
appointed the commissioner to make the
sale and the commissioner employed the
auCtioaecr, the latter's fees should be
I paid by the commissioner out of his fee,
and not come out of the fund. The
Judge confirmed the action of the COM
missioner in engaging the services of
the auctioneer If he did not previously
authorize it, and he did In fact d rectly
authorize the auctioncer to conduct at
least one sale, private one that was set
aside. Moreover in the final order he
/ merely authorized the commission to
pay the auctioneer's fee. After all, ii is
immaterial whether the Judge allowed
the fee directly to the auctionoer or
combined the two fees in the commits
soner's fee, leaving the latter to settle
with the auctioneer. The question of
Importance is that of the amount.
1t Is contended by the appelees that
the amount is not appealabe as that Is
"A matter within the discretion of the
trial Judge. 1t is true that much allow
ance must be made for the discretion of
the Judge. Fees in matters of this kind
often depend largely as to their amount
on oral statements of counsel and on the
knowledge that the Judge has of the
whole course of the proceedings Still
when the amount is clearly excessive
tate of Alma, 10 Haw.. 3S9. In our opin-
ion the amount was clearly excessive in
this instance The commissioners fee
may be sustained as within sound dis
erection, but that of the auctioneer
should, in our opinion, not exceed $3.50
We cannot approve the practice of al
lowing eXtravagant fees out of the es-
tates of others.
So much Of the decree as allows a fee
of $llis2O to be paid to the auctioneer is
set aside and the case is remanded to
the Circuit Judge for further proceed
ings in conformity with the foregoing
views
KAPIOLANI ESTATE WINS.
The Supreme Court in an opinion by
Perry sustained the lower court in the
case of Kapiolani Estate vs. l.. X.
Puahi. This was an action brought
originally by the Dowager Kapiolani to
enJoin the prosecution, brought by the
defendant in this case for commissions
for collecting the sum of $41,4S473 for
Kapiolani.
The defendant was employed by COM
plainant to collect her rents, pay her
servants and generally to attend to heI
domestic affairs
In 1896 defendant was discharged and
then brought suit claiming commissions
on collections. The court allowed her
$500 upon making a proper settlement
OF all accounts, and an injunction was
issued restraining Puahi from further
prosecution of the suit. The appeal Is
taken on the ground that the lower
court had no jurisdiction. The Supreme
Court holds that the Circuit Courts hui
jurisdiction prior to the PRONUNCIATION
o. the constitution of 1894 in these
matters.
In the syllabus the Supreme Court
holds:
X. employed p. "as collector and clerk
to collect her rents, settle and pay bills,
pay her servants and generally to attend
to her domestic financial concerns un-
der her order and directions and from
time to time to make due and proper
accounts thereof" P.'s employment in
that capacity continued for two years
and more, and at the end of which time
she was discharged by X. p. then in
stituted an action at law against X
for compensation alleged to be due her
for her services. Shortly thereafter X
brought suit in equity against p, for
an accounting as to the moneys received
and paid out on ks behalf
Held, that =. was a quasi trustee for
Is, and that a tiduciary relation exist
ed between the parties, that under the
eriy took jurisdiction to determine the
state of the account between them and
that in so doing it took jurisdiction of
matters not then before the court of
law
If jurisdiction has once been properly
assumed, court of equity may retain il
throughout the litigation until full JUS
tice has been done between the parties,
even though in so doing it may decide
questions which, standing alone. would
furnish no basis of equitable Jurisdiction
to determine the issues of compensation
and of the lawfulness of the agents dis
charge and other incidental questions
and properly enjoined the prosecution of
the action at law.
Under the circumstances stated, p. was
not entitled to a trial by jury under Sec
tlon 3, Art. 6, of the Constitution of 1894.
In force at the date of the institution of
these proceedings.
RICHARD DIVORCE CASE.
.Indpa iC