The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1903-07-22
SAME OLD
SUIT AGAIN
MOntanOVS. Castle
Thrown Out
of Court.
Aftermath of Kamalo
Sugar Company
Judgment.
Judge De Bolt Declines to Try a
fiilo SquabbIe-H. A. p.
Carter Estate, etc.

Judge De Bolt rendered a written de-
cision yesterday, sustaining the plea in
bar of defendant in the bill for ac-
counting of Mary ]. Montana VS.. w.
r. Castle. 1t is the second time, as the
decision says, these parties have been
before the courts upon the same SUBJ
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
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 sufficiency of
the mortgage. In the decision of the
Supreme Court it was said chat 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:
1.-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-
ton as to the sufficiency of the chattel
mortgage, If not expressly and actually
determined in the former adjudication,
was so essentially connected Herewith
and involved therein, that 1 am bound
to hold, as do, 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 a 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 we'll as public policy and regular
judicial procedure. forbid constant or
repeated litigation of the same subject
matter between the same parties.
Therefore, the bill fled herein by the
plaintiff praying for an accounting
ought to be dismissed"
J. A. Magoon for plaintiff; w. r. Cas- /.
tie and w. L. Whitney for defendant. |
KAMALO SIDE SHOW. !
Defendant has moved to set the cause !
of Lawrence II. Dee VS.. w. II. Smith |
for hearing instanter. Besides he files
an answer in which he denies that Dee
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
- Fv-aV Jfe~1nl
Sheriff A NJ. Brown. admits that a pre-
tended execution sale was held by the
High Sheriff under a 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 a judg-
ment rendered by the First Judge Of
the same court against Frank Hustace,
John ]. Egan and Frank II. Foster in
favor Of Harvey r. Hitchcock and 9TH
ers for s39. ISIS: admits upon informal
ton 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
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
he pretended alias writ of execution no !
other property within this Territory | {
which could be reached by execution, |
but admits upon informatio and belief
that at the time of the issuance of such
writ Hustace had no property within {