The Hawaiian gazette., 1903-07-24
SAME OLD
SUIT AGAIN
Montanovs. Castle
Thrown Out
of Court.

Judge De Bolt rendered a written de-
cision yesterday, sustaining the plea in
bar of defendant in the bill for ac-
counting of Mary J. Montana VS.. w.
r. Castle. 1t is the second time. as the
decision says, these parties have been
before the courts upon the same sub
ject matter and for the same purpose
which was judicially determined and
disposed of upon its merits on the al
legations and evidence in the original
suit. Counsel for plaintiff, however,
contended that the sufficiency of the
chattel mortgage, accepted by plaintiff
as security for $4,000, was not decided
or involved in the former adjudication
and, therefore, was still open to judi
cial determination. Defendant con-
tended otherwise, hence the plea in
bar
The court finds that the matter in
question was actually raised at the
original hearing and decided by Judge
Gear, though against the sufTiciency of
the mortgage. In the decision OF the
Supreme Court it was said that If the
plaintiff did not authorize the taking of
the mortgage she afterward with full
knowledge of the facts ratified the acts
of the defendant in accepting it," on
which Judge De Bolt says:
Indeed, the sole contention. from the
time Of filing the first bill herein to the
present time, has been upon the suf-
ficiency Of this mortgage"
The court takes up the point now
raised and, quoting many authorities,
concludes:
"The plaintiff having had her day in
court and the cause having been fully
and fairly presented, considered and de-
termined upon its merits, and the ques-
tion as to the sufficiency of the chattel
mortgage, IL not expressly and actually
determined in the former adjudication,
was so essentially connected Herewith
ana involved therein, that am bound
to hold as 90, that such adjudication
is now binding and conclusive upon her
on the point raised and is res adjudi-
cata in this suit. That this point may
be or now is viewed from q different
standpoint, or such sufficiency of this
mortgage be questioned for reasons
other than those advanced at the first
hearing, Is, in my judgment, wholly i'm
material. Litigation should not be
piecemeal. Equity and common justice,
as well as public policy and regular
judicial procedure, forbid constant or
repeated litigation of the same subject
matter between the same parties.
Therefore, the bill filed herein by the
plaintiff praying for an accounting
ought to be dismissed"
]. A. Magoon for plaintiff; w. r. Cas-
tie and w. L. Whitney for defendant.
EAMAJn CINE CHOW
Defendant has moved to set the cause
of Lawrence H. Dee vs.. W. II. Smith
for hearing instanter. Besides he files
an answer In which he denies that Dee
is owner in fee simple or otherwise of
the premises named in the complaint,
denies that complainant is in possess
sion of the premises or any part there
of, denies that complainant Is owner of
the land by virtue of deed from High
Sheriff A. NJ. Brown, admits that pre-
tended execution sale was held by the
High Sheriff under pretended alias
writ of execution issued by the Third
Judge of the First Circuit Court, ad-
mits that the pretended alias writ of
execution was issued to satisfy judg-
ment rendered by the First Judge OF
tne same court uSdllSl
John j. Egan and Frank II. Foster in
favor of Harvey r. Hitchcock and 9TH
ers for sS9, 7Sl.SS; admits upon informa-
tion and belief that Hustace, Egan and
Foster were each insolvent on June 9,
1902, and have been insolvent ever since
and are now insolvent; says he has no
knowledge nor information sufficient
upon which to predicate a belief as to
whether Egan and Foster have not now
or had not at the time of levy under
the pretended alias writ of execution no
other property within this Territory
which could be reached by execution,
but admits upon information and belief
that at the time of the issuance of such
writ Hustace had no property within
this Territory which could be reached
by execution. denies that he had any
knowledge or information as to the in
solvency of Hustace, Egan and Foster
until the filing of this complaint. ad-
mits that on September 3, 1902, and for
a long time prior thereto, the land in
question was the property of Hustace
and that on that date Hustace convey
ed 1t to defendant, but denies that It
was pretended conveyance without
fraud the creditors OF Hustace, or that
defendant had any notice of any such
intention on the part of Hustace: to
the contrary, defendant states the fact
to be that said conveyance was made
bona fide and for a consideration of
great value under circumstances that
he proceeds to narrate.
TRUSTED EACH OTHER.
the intent on his part to delay and de-
For many years Hustace and Defend
ant had been warm personal and busi-
ness friends and entertained unboundei
confidence in each others fidelity and
Integrity. On September g. 1902, Hus-
tace was indebted to the estate OF NJ
Louisson. deceased, for a loan OF $40, 1000
on promissory note, secured by de-
post OF 100 shares OF Oahu Sugar Co.
and 400 shares OF ookala Sugar Co.
When the note matured and extension
was refused. II would have been impos-
sible to sell these shares excepting for
sum considerably less than their mar
ket value.
Hustace in this emergency applied TO