The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-08-25
/ Judges of the several Circuit Courts at
/
NO PROBATE COURT.

he decision eidDOI dttS llIG foregoing
PROPOSITION TO show that, without pro-
bate Judges or courts, the Circuit Judges
are fully empowered TO hear and deter
mine all matters OF probate. 1t is men
toned that there is no equity division
any more than there is probate divis-
ion" in our judiciary system. Prior TO
the massage of the amendment to the
statute relating to guardians" the Judge
saws. 1T was the same Judge who was
GIVEN the jurisdiction to hear equity
matters that heard probate matters. I'm
der the statute as it stood all proceedings
were properly brought before the Judge
OF the Circuit Court and should have
been addressed to him. Under the stat
rte as if now stands exactly the same
mode of procedure should be followed.
The amendment has no other effect than
eliminating unnecessary and misleading
words. and making the statute correctly
describe the Judge having jurisdiction in
such matters by referring to him simply
as Judge.
AN OLD LAW.
II is pointed out that as long ago as
1868 practically the same law was con-
strued by the Supreme Court. when its
Judges had the jurisdiction now exercis-
ed by Circuit Judges, on 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 court
of equity, the Supreme Court said:
1T is argued, and | think with great
force, that under 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, in case calling for that species
of relief, appoint receiver. this court
could remove an executor appointed. by
will. and appoint another in the shape
of an administrator cum testamento an
nexo. which a 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
a 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 of the North American
Union" Further. it was held III 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 llt1gant 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 a 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 a 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
in the demurrer as to there
not being facts in the petition to consti-
tute a 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 4 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-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
Emmeiuth & Co., Ltd, VS. Kapiolani
Estate, Ltd. Judgment for plaintiff for
S3I454