The Hawaiian gazette., 1904-08-05
JOY AND
SORROW
Motley Loses---hays Is,
o. X. -. Hackfeld
Must Pay.
(From Wednesdays Advertiser.)


Charles Motley on Monday received a.
nomination at the hands of the Home
Rule party for delegate to Congress-,
yesterday the Supreme Court decided
he had no right to the property of his,
father, deceased, whose will disinherit-
ed him. $50 soon shall joy be followed
by sorrow" is aptly illustrated in Mr.
Notley's case.
The decision is written by Chief JUS
tice Frear and is also signed by JUS
tice Hatch and Judge De Bolt of the
Circuit Court sitting in place of Jus
tice Hartwell. The judges deny the
rehearing applied for. and find that no.
palpable error was shown.
The opinion. in part. says: "The VIII
and codicils We're admitted to probate
by a circuit judge at chambers. on
contestants appeal to the Circuit Court
on the issue of undue influence a diff
ferent judge presiding, a verdict was
directed for the proponents on the
ground that there was no evidence Of
undue influence that could properly be
submitted to the jury on contestants
exceptions this court sustained the di--
rected verdict. Contestants then NOV
! ed for rehearing, their principal con-
tention being that the court in holding
that there was not sufficient evidence
of undue influence to go TO the jury,
did so on the erroneous theory that, in
order that indirect or circumstantiai
evidence of undue influence Chat be-
ing the character of the evidence re-
lied on) should be submitted to the
jury, 1t should be of nature clear and.
convincing to the court whereas the
court should have proceeded on the
theory that any evidence more than
a scntilla would be sufficient. The
court denied the motion for rehearing,
holding that the original decision did
not bear out the contestants conten-
tion as to the construction of that de-
cision. The contestants now move a.
second time for rehearng. Accepting
the statement of the court as to it's
construction of the original decision,
but contending that they were justified
in placing upon that decision the con-
truction which they relied on in their
first motion for a rehearing and. that
this fact together with their claim that
the original decision was a 'palpable-
error and grievous wrong" is sufficient
justification for their filing this second
motion for a rehearing.
1t remains true that this matter was
WIFI UNUSUAL
and earnestness at the original hear
ing and that to grant rehearing would
be to do so merely that the case might
be presented again substantially as at.
that hearing in the hope that the court
might be induced to come to a different
conclusion, and we may add now that.
no sufficient showing has been made
that the original decision was ''palp-
a ble arrpr nd priayouS wrong which
is the chief claim relied on to justify
this second motion for rehearing-
The motion is denied.
SEAL NOT ONLY THING.
The Supreme Court yesterday filed a
decision in the case of Thos. Mullen
vs. John Walker, the exceptions of
plaintiff from rulings made in the First
Circuit Court being sustained.
The case came to the Supreme Court
on plaintiffs exceptions, the first,
grounds being against the granting OF
defendants motion to set aside the SER
vice of summons on the ground that
the copy served upon the plaintiff did
not bear the seal of the court, and sec
ond, the denial of plaintiffs motion to-
amend the said copy by placing the seal
thereon.
against it's own views on the SUPPOSE
tion that it was bound to do so by the
decision of the Supreme Court in Hay
ashi VS.. Iwata, IA Haw. 627. In the
opinion of the Supreme Court the view
of the trial court was correct, and the
decision referred to did not require it.
to hold otherwise. There were there
two points of difference of importance5
In that case both the seal of the court.
and the signature of the clerk We're
lacking while in this only the seal is
lacking, and there was at that time no
statute authorizing amendments of
process while now there is such a stat
tue in the Laws of 1903. The better
view seems to be that when either the
signature or the seal is present the pro-
cess may be amended as to the other
at least under statutory authority to-
amend process. In such cases the court
is not wholly without jurisdiction.
The case is remanded to the Circuit
Court for further proceedings consistent
with this decision.
T. McCants Stewart for plaintiff; W.
T. Rawlins for defendant.
Clerk Geo. Lucas of the Supreme
Court yesterday filed a remittitur re-
with instructions to make and enter
an order amending the copy OF the
summons therein, pursuant to the Su-
preme Courts decision.