The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1903-05-29
GEAR AGAIN
REVERSED
CausticComments
In Da Silva
Case.

Judge Gear came in for another lit
tie scoring from the Supreme Court
yesterday in the matter of the estate
of Jose da Silva, the record of
which the court says teens with ir-
Irregularities" This was case where
in deceased left a widow for whom
Thos. Fitch was the attorney-at-law,
no other heirs appearing. The money
was ordered paid to Fitch by Gear.
Some time afterwards a sister of the
deceased appeared on the scene and
Geo. Davis claiming to represent both
the widow and the sister got Gear to
order Fitch to pay the money (only
$3.50 into Court.
The Court in an opinion by Frear,
Galbraith dissenting, reverses Gears
order and says why the attorney in
fact (Davis) should act for both wild
ow and sister, IL their interests were
adverse does not appear. Why the
final order of distribution should be
modified or revoked for the purpose Of
fixing the fees Of the attorney-at-law
also does not appear, and what the
Judge had to do with those fees, which
were a matter of private arrangement
also does not appear"
Davis was also ordered to pay into
court $229.16 but Gear revoked this
order on the ground that he was au-
thorized to keep the money as attorney
in fact for the sister, of which trans
action the court remarks, "Why the
money should be ordered paid to the
attorney in fact of the sister before the
proposed further hearing as to whether
she was entitled to it, and before any
adjudication to that effect does not
appear.
The court holds that Gear lacked
jurisdiction in ordering Fitch to pay
money into court and says in conclu-
sion: What authority was there to
order a third party to pay into court
sum of money of his own in case
in which he had no interest and to
which he was not a party, and the
fact that the order was also, to await
further proceedings did not make it
introductory so as to preclude an ap-
peal. A judge cannot order people at
random to pay money into court to
await his pleasure. The attorney was
clearly entitled to the possession of the
money as against the court, and an or
der depriving him of that possession
would be final for the purposes of APP
peal as much as an order depriving
him of the possession of tract of land
belonging to him would be. There was
moreover no intimation as to what was
to be done with the money or what
further proceedings it was to await"
DECISION AS TO FIRE CLAIMS.
The Supreme Court rendered deci-
sions in three cases yesterday in all of
which Auditor Fisher was sustained in
his refusal to pay fire claims where
in there had been a subrogation Of the
claim. The three cases were the APP
peals OF j. f. Colburn, Royal Insu-
rance Co. and En- Syak Aseu. In the
latter case the court says in it's syl-
labus:
"A claimant Is not entitled to war;
rant for the entire amount upon a GER
tifate from the Fire Claims Commits
sion that a certain amount is the cor
rect award, when the certificate also
states that that amount Is correct 'as
per record of judgments and that it
was made subject to the interest OF
another claim"
The auditor had refused to pay any
of these claims for ten per cent of
the award while there We're other
claimants upon the same certificate.
Now the matter of subrogation of fire
claims will have to be brought into
the equity courts and the rights of the
respective claimants ascertaned.
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