The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-04-08
A DAY Of
REVERSAL
Two Judges Hard
Hit in Higher
Court.

Gear and Humphreys had bad da1
in Supreme Court yesterday. Four de
cisions were handed down. and all bu
one were reversals. In all the decision:
| but one the opinion is unanimous. IL
the divorce case of Nobregga V. No
bregga Judge Gear is overruled for 8
second time, Justice Perry dissenting
and sustaining the lower court. Gear
originally allowed the wife alimony tC
the amount of SIS 900, and this was set
aside by the Supreme Court as exces-
sive. Then Gear lowered the amount
70 $4,000. and now the Supreme Court
| reduces the amount for the anne rea-
son. and takes the matter entirely out
OF the lower courts hands. fixing the
alimony at $4,000
The opinion is written by Chief JUS
tice Frear and the lower court is re-
versed not only as to the excessive
alimony, but the Supreme Court disap-
proves the allowance of gross alimony
as bad practice. Judge Gear is CEN
sured also for making the time of pay
ment too short, the Supreme Court
holding that the amount of alimony
awarded could hardly have been OBJ
tanned under forced sale OF the entire
property. The court orders further
that the libelee be given six months
to pay the alimony of $5O0O to which
the judgment is reduced.
Justice Perry. in dissenting. holds
that alimony in gross should not be
awarded and contends that periodical
allowance should be made for the wife's
support.
HUMPHREYS REVERSED.
In the case of Irene Holloway VS..
Chas. a. Brown. Judge Humphreys is
reversed for having exceeded his juris-
diction. This is the case where there
has been a long drawn out dispute over
the possession of the children, Gear
having made the original order in open
court. which Humphreys modified in
chambers. The Supreme Court holds
that
"A writ of error may issue from this
court to a circuit judge sitting in pro-
bate at chambers.
"A circuit court, sitting in probate
at chambers has no jurisdiction to re-
wise or modify a decree of divorce rem
dered in circuit court.
The consent of parties cannot give
the judge or court Jurisdiction over the
subject matter Of a controversy
The opinion is unanimous and is writ
ten by Justice Galbraith.
GEAR GETS 1T AGAIN.
Judge Gear is reversed also in the
matter of the Holt estate. The opinion
is written by the Chief Justice and is
In this case Henry Smith
who was the trustee, withheld $211i.70.
which had been overpaid by his prede-
cessor to j. ID. Holt and j. r. Holt, the
Judge Gear held that this
though paid to the heirs in eN-
cess OF the income. could not be taken
out of the estate but must be collected
by the trustee as a personal debt. The
Supreme Court holds that if there had
been no change in trustees. there would
never have been a-question as to the
right of the trustee to retain the mon
ey from future income.
The court holds, in the syllabus:
THE absence of a transcript of the
evidence is not sufficient ground for the |
dismissal of an appeal when the trans |
cript is not necessary to a disposal of
the case on its merits.
IF a trustee has overpaid a benefit |
ciary entitled to the income for life. |
he or his successor in the trust may |
recoup himself out OF future income TO
which such beneficiary would other
wise be entitled
THE MARKHAM CASE. |.
Humphreys is sustained in the case
If F. Wundenberg. trustee V. George
Markham, in which he refused to grant
an injunction to restrain defendant
rom entering upon the premises of the
olaintin The opinion is written by
Justice Perry and the syllabus says: I
Ordinarily a court of equity will not
enjoin the commission of a trespass
ipon land when the title has not been
ried at law; but IL the acts or threat
ned acts are such as to cause irrepar-
tble injury. an injunction, at least
'ending legal proceedings for the de-
ermination OF the title will be granted.
The facts stated in the bill held not
o constitute a case of irreparable in
try.
An injunction will not be used 10
axe property out of the possession OF
ne party and put it into that of an
Their" Also:
Where the injury apprehended from
trespass or threatened trespass is not
erious nor in its nature irrepara Bile,