The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-08-26


II is pointed out that as long ago as
1876, practically the same law was con-
strued BY the Supreme Court when its
Judges had the Jurisdiction now exercis-
ed BY Circuit Judges. on a motion to or
der an executor to give security or pay
the money of the estate into court.
| Where it was objected that the remedy
sought was only obtainable in a court
of equity. the Supreme Court said:
1T is argued. and | think with great
| force. that under a fair construction OF
this provision this court possesses all the
power that court of equity could exer-
else in the premises. Nay, | conceive
even more, for while a court of equity
might, i'll a case calling for that species
of relief, appoint receiver, this court
could remove all executor appointed, by
will, and appoint another in the shape
OF an administrator cum testamento an
nexo, which court of equity could not
do"
The Hawaiian decision is further
quoted to the effect that under the Civil
Code-of which the present law is al
most copy-the Hawaiian probate
courts had always claimed and exercised
much larger jurisdiction than the
English ecclesiastical courts, in fact
having the same powers as were gen
orally exercised by probate courts in the
several States col the North American
Union" Further. it was held in the
same decision that: Full power is in
vested in the Supreme Court so to reg
ulate proceedings in probate courts as to
effectuate all their powers, and to pro-
mote justice between parties litigant be-
fore those courts. And / see no reason
why court of probate may not afford
equal facilities with a court of equity
LEGISLATURE MAKES COURTS.
1t is observed that the functions rela-
tive to adoption of children, ETC., do not
constitute an orphans Court" or a
Surrogate Court" and that to grant a
writ of habeas corpus did not make a
special court All courts must be Great
ed by law. Neither the trial court nor
the Supreme Court can create them, but
they are solely creatures of legislative
enactment. From all this Judge Gear is
Clearly convinced that there is not in
this jurisdiction such a court as Pro-
bate Court. and that all jurisdiction in
probate and equity matters is in Judge
OF the Circuit Court simply as such
Judge"
CONSTITUTIONAL POINT.
Attention is called to point not rails
ed by counsel, which the court thinks
may be grave constitutional question"
This is that the Organic Act vests the
judicial power OF this Territory in the
Supreme Court, the Circuit Courts and
such inferior courts as were or might
be established by the Legislature. For
some reason it omits all mention of the
Circuit Judges Upon this point" the
court says, there is an interesting case
arising under similar constitutional
provision in California" Judge Gear
does not feel called upon to decide the
question involved in this provision OF
the Organic Act.
CAUSE OF ACTION.
Having concluded that he has jurisdic-
ton. Judge Gear briefly considers the
objections in the demurrer as to there
not being facts in the petition to consti-
tute cause OF action. A Massachusetts
case is quoted where a complaint was
held sufficient which merely stated that
the respondent was an unsuitable per-
son to act as such guardian" Also a
Florida case is cited where it was held
sufficient that the court found it had
jurisdiction OF the subject matter.
FATTENING THE CALENDAR.
Appeals have been sent up from the
District Court of Honolulu in the fol-
lowing cases:
Chun Lo Jar, sentenced to nine
months at hard labor for stealing re-
volver.
VIM. Mckinley. H. Kubey, c. F. Eng
land and w. c. Achi, fined $40 and costs
each for gambling.
Asaka, fined $40 and costs for assault
and battery.
Woods x Sheldon VS.. F. K Maxine
Judgment for plaintiff for $25,65.
All Kim VS.. Honolulu Rapid Transit
Co., Ltd, and Hustace-Peck Co., Ltd.
Damages found against Hustace-P Peck
Co. for $4,000 including costs, on ac-
count OF this defendants wagon injuring
plaintiff while he was standing on the
footboard of an electric car.
Emmeuth & Co., Ltd, VS.. Kapiolani
Estate, Ltd. Judgment for plaintiff for
S3I4.5+.
A. G.. Correa VS.. Manuel Tavares Yer
dinho. Judgment for defendant with
costs in suit for balance OF attorneys
fee OF $50 The defense was an alleged
bargain that the fee would be SIS if the
case ended in the District Court and $50
more il it went up on appeals. A nolle
prosequi was entered, ending the case.
Verdinho was charged on December l,
1901. with shooting his wife in the leg.
His son retained Correa who with NJ.
G.. Silva went to the house OF the dis
turbed family to arrange about the fee.
Chung Tong Chung VS.. Luke Mong
Wa, Judgment for plaintiff for Sr56.5o. |
Whitney & Marsh, Ltd, VS.. Elizabeth
X. Pratt. Judgment for plaintiff Tor
S6645.
X Tanaka VS.. r. Tanaka, defendant,
and X Kimoto, garnishee. Judgment
for plaintiff for SGI3,63,
Luke Mong Wa VS.. Lee Sing alias zee
Wo. Judgment for plaintiff for Soo62
Jas. l.. Holt, assessor OF taxes, vs.,