The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1902-04-08
A DAY Of
R[V[RSALS
Two Judges Hard
Hit in higher
Court.

osear and Humphreys had a bad day
IN Supreme Court yesterday. Four de-
cisions we're handed down. and all but
one we're reversais. Ia all the decisions
hut one the opinion liz unanimous In
the divorce case Of Nobregra v Mo-
bregga Judge Gear In overruled for
second time, Justice Perry dissenting
and sustaining the lower court Gear
originally allowed the wife alimony 10
the amount OF $4,000 and this was set
sside by the Supreme Court as Excess
sive. Then Gear lowered the amount
to $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
slimony 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
slimony but the Supreme Court disap-
proves the allowance Of gross allmony
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
tained under forced sale of the entire
property. The court orders further
that the libelee be given six months
to pay the alimony of $4,000, 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..
a RrpVyn 1nnnp is
reversed for having exceeded his juris-
diction. This is the case where there
has been 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 circuit judge sitting in pro-
bate at chambers.
"A circuit court. sitting I'm probate
at chambers has no jurisdiction to re-
wise or modify 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 IT AGAIN.
Judge Gear is reversed also in the
matter OF the Holt estate. The opinion
IL written by the Chief Justice and is
unanimous In this case Henry Smith
who was the trustee, withheld $2ll4.70,
which had been overpaid by his prede
cessor to j. ID. Holt and j. II. Holt, the
benefciaries. Judge Gear held that this
amount, though paid to the heirs in ex-
cess OF the income. could not be taken
out of the estate but must be collected
by the trustee as personal debt. The
Supreme Court holds that If there had
been no change in trustees. there would
never have been n question as to the
right OF the trustee to retain the mon
ey from future income.
The court holds, i'm the syllabus:
The absence of transcript of the
evidence is not sufficient ground for the
dismissal of an appeal when the trans
crlpt liz not necessary to disposal of
the case on its merits.
III a trustee has Overpaid benef-
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"
Humphreys is sustained in the case
of +. Wundenberg. trustee V. George
Markham, in which he refused to grant
an injunction TO restrain defendant
from entering upon the premises of the
plaintiff The opinion is written by
Justice Perry and the syllabus says:
Ordinarily court of equity will not
enjoin the commission of a trespass
Ia nd
tried at law; but IL the acts or threat
ened acts are such as to cause i,repar-
able injury, an injunction. at least
pending legal proceedings for the de-
termination Of the title will be granted
'"The facts stated In the bill held not
to constitute a case of irreparable in
jury.
AN Injunction will not be used to
take property out of the possession of
one party and put 1t into that of an
other" Also:
Where the injury apprehended from
trespass or threatened trespass Is not
serious nor in its nature irreparable.
but the main object Of the suit is to
settle the title. a court of equity ought
not to interfere by injunction. even IL
the respondent be insolvent."
william III. Barth was yesterday or
dered to pay his deaf-mute wife ali
mony to the amount of ten dollars
week, an attorneys fee OF one hundred
dollars and court costs OF twenty-f five
dollars The case was heard before
Humphreys In chambers yesterday
morning. Davis appearing for the de-
PENDANT and Russell & Watson for COM
plainant. Davis demurred to the COM
plant on the ground that such an ac-
ton without divorce was improper
pleading, and that no divorce could be
applied for, because OF the fact that
the parties had not lived here long
enough to make such an action good.
The demurrer was overruled and the
plaintiff introduced testimony showing
the facts leading up to the separation.
The wife Is mere girl. and quite hand
some.
An interpreter versed in the sign
manual repeated her story to the court