The Hawaiian gazette., 1904-09-02


in the Circuit Court of the Third Circuit
on the motion of Samuel Parker ct al
to vacate the order of injunction and an
order for receiver made against them
on the petition of Alfred w. Carter:
PARTNERSHIP
The respondents move to vacate the
order OF injunction and the first order as
to the receiver. Nothing whatever is
said about the order OF June 18TH Yet,
the last two orders being practically
Identical the motion will be considered
to apply to both.
8 EQUITIES THAT EXIST.
Granting that the complaint may be
defective, for failure to give a proper
description of the lands and herds to
be partitioned, the respective interests OF
the owners, and, in some instances. even
the names OF the owners, defects, by the
wav. which may be cured by amendment,
even to the extent possibly OF the sub
stitution of new complaint, it never
theless appears, upon the showing made
on this motion. that there are such
equities in the case of the complainant
as enttle him to the continuance, for
the time at least, OF the orders already
made.
The motion to vacate. with its ~olumi-
nous accompaniment, has been made 10
include the motion to dismiss, the de-
nlurrer, what might later be an answer,
and, finally the evidence. This court
has not for moment stood committed
ito the proposition that the merits of the
I complaint could be tried out upon aft
davits, but they have nevertheless, been
! given careful attention. In the conflict
ing statements which they contain, it is
far more difficult to reach the truth than
would be the case with viva voce testi-
mony and the great assistance afforded
to the court by personal presence and
discrimination.
However, among many others, the fol-
lowing facts are deducible:
FACTS LAID DOWN.
That Annie T. K Parker and Samuel
Parker Cor Fred Wundenburg) own the
Parker Ranch that the ranch consists
of fee simple lands held by the above
parties. both in severalty and in COM
mon, of leased land held by them in
common, of herds of cattle, sheep. and
horses. also held in common and de-
Pasturing upon the different lands just
mentioned, and of other personal prop.
}erty Likewise held in common; that the |
peaceful relations heretofore existing in |
( the management of the ranch have been
terminated; and that Samuel Parker and |
\ Fred Wundenburg, under a recently ad-
vanced theory of surviving partner, have
asserted and threatened to enforce, part
ly through Eben p Low, an exclusive |
control of all the Parker Ranch.
The claim as to being a surviving part
ner cannot be established by mere re-
iteration, even in afidavits, when so in
consistent with all the other facts in
volved
The right of a surviving partner is to
Immediately wind up the partnership at
fairs, and the rule is that, if this right
is not claimed and exercised within
reasonable time, court of equity will
step in and appoint receiver. There
must, of course, be partnership, and,
furthermore, an unsettled one
THIRTEEN YEARS ELAPSE.
John P. Parker, end, died November
e2nd, 1901, nearly thirteen years ago.
When has the Surviving partner shown
any disposition to settle any partnership
affairs? Instead of closing up the Park
er Ranch, Samuel Parker says: The
business has been conducted and en-
larged, profitably, ever since it was start
ed and down to the present time y,
but there was no interruption to the bus
mess, and | have acted as survivor con-
tinuously until now. The affairs of my
co-partnershp with John P. Parker the
second, continued through the lifetime
of John p. Parker the third and with
my grandchld aforesaid, with the ac-
quiescence of the said complainant until
| determined to change the management,
have never been settled, closed or liquid
ated. The business has steadily pro-
ceeded and has been lucrative" l
Thus it is seen how industriously the
Surviving partner" has attempted dur {
ing the last thirteen years, to wind up
the alleged partnership The argument ,
is possibly one of survivorship i'll perpe- /
tuity.
PROBATE RECORD CITED.
Furthermore, a certified copy OF pro-
bate proceedings in the Circuit Court /
of the First Circuit In the Matter OF
the VIII of John p. Parker, late OF Wal
mea Hawaii deceased" shows that
Samuel Parker himself and William +,
Allen, executors represented to the court, J
under oath, that they had previously filed G
"a sworn inventory OF all the property !
and assets OF every kind whatsoever, {
within their knowledge, belonging to the
estate OF the said deceased" that they i
had done all things " which faithful and 5
prudent executors ought 10 do;" and
pettloned for allowance of accounts,
final distribution, aud discharge, The ,
petition was granted dine proof having !
been made that the said executors had !
done All the Nid things hy them alleged I
Ia have hern dene ~ rirhl, 1T 81
a surviving partner seem tn have yms g
harnssed the settlement ri oh, estate =
N Is unnecessary iu refer lu other "A