The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-08-25
ND PROBATE
COURT HERE
Point Decided in
the Parker
Case.
Demurrer Overruled and
Five Days Given to
Answer.
Constitutional Question Is Mooted.
Big Batch ofAp-
peaIs.

>
cision overriding the demurrer to the
amended petition of ]. S. Low, as next
friend of Annie T. K. Parker, minor
to remove A. w. Carter as guardian
The guardian is given FIVE DAYS in which
Ito answer the complaint In his con-
clusion the Judge says:
1T seems to me that here, as III
Florida and New JERSEY where the
statute prescribes no particular mode OF
procedure no such nicely in pleading
lis required as is required in bill in
equity"
The first question considered was that
OF Jurisdiction, the demurrer having OBJ
iected that the petition and motion pur-
ported to be brought before Circuit
Judge sitting in probate and that no
| Judge or Court of the First Circuit sit
ting in probate had jurisdiction to re-
move guardian; also that a proceed
| ing before Judge sitting in probate to
remove guardian is an improper pro-
ceeding in that the proper method of
procedure for the removal of guardians
is before Judge sitting in equity.
Stating the case the court says:
"The claim of counsel for the guard
ian is that, the Legislature of 1908 hav-
ing by Act 10 of the Session Laws of
1908 amended the Act relating to guard
ians and wards by striking from the
various sections of that Act the words
of probate and court wherever they
occur and by inserting in lieu of the
word court, where SO stricken out the
word Jpdassss the jurisdiction of the
Probate brit over guardians and wards
is thereby taken. away ,
Counsel have cited many eases 20 the
effect that probate courts are courts of
statutory and limited jurisdiction and
have only the powers conferred upon
them by statute. They contend that, as
the statute has been amended by strik-
ing out ali reference to the PROBATE
Judge and the Probate Court the
jurisdiction over guardians and wards
reverts to the court of chancery. and
that now chancery alone has jurisdic-
ton
Judge Gear considers the jurisdiction
conferred upon the probate court before
the amendment OF the statute, "for the
statute did not of itself create or confer
jurisdiction upon such a court, unless by
implication if that were possible" He
E1ds +Lo+ bafora +te 1orcoUa ~ tho Or
ganic Act the Legislature established in
each of the Judicial Circuits a court
styled the Circuit Court, giving all such
courts and their judges variety of
powers, among others TO grant probate
of wills, to appoint administrators and
guardians" etc, on which he says:
Il have been unable to find any statute
which either creates or confers jurisdic-
ton on any court known as the Probate
Court or any Judge styled the Probate
Judge. On the contrary, jurisdiction of
all matters, which IN over forty of the
States is conferred on probate courts, is
given to the Judges of the several Cir
cult Courts who have power at cham
bers' to hear and determine such mat
tiers.
CURIOUS SITUATION.
Il have been greatly surprised to find
this condition of things, as many ques-
tons have been heretofore submitted for
decision which involved the determine
ton as 70 whether or not the so-called
i Probate Court or Court of Equity
had jurisdiction in the premises. The
courts have heretofore proceeded upon
/ the assumption that there was court OF
! probate here and this has never been
questioned ND TO the present time so far
as I know. That this should continue
is no. a matter of surprise. for many OF
| the statutes have referred to the Pro
bate Judge and Probate Court"
! Some of these statutes are quoted
! which the same terms are used. Judge
F, Gear then proceeds to remark:
But now that the jurisdiction of the
! Probate Court is asserted to have been
lost by this amendment to the statute in
question, the question of the establish
ment' and the very existence of such a
court is necessarily involved, for if there
| had been and IS a Probate Court then
/ the amendment TO the statute becomes
| OF great Importance. The existence OF
! such court, however. cannot be proved
, by mere reference to it in statute or a
decision OF the Supreme Court. There
must be a statute creating such a court
] and conferring jurisdiction upon it be
! fore It can be judiciallv determined that
the passage OF a statute has deprived il
OF jurisdiction over anv matter. This
| have been unable to find and counsel
at the request Of the court. failed to
point i ont. The only statute confer
ring jurisdiction over the matters in
question gives the jurisdiction to the