The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-08-23
COURT HELD
N0NEX|STENT.
Query to Pass Up
to Supreme
Court.

Whether or not there is such tribu-
nal in this Territory as probate court
is again before the courts, this time II,
connection with the matter of the guard
ianship of Annie T. X. Parker, a minor
1t went through the mill before as far
as the Supreme Court in the Holt es-
tate litigation but the matter in
volved was decided there without ref
erence to that question.
Now the point is up on demurrer to
the amended petition OF ]. S. Low, as
next friend of the minor, for the re-
moval of A. W. Carter as her guardian.
There are other points in the demur-
rer, such as that the allegations Of the
complaint do not constitute cause OF
action, so that the question of the ex-
istence of a PROBATE court may again
be found, by the appellate court, mot
necessary to consider"
Argument on the demurrer occupied
the greater portion of yesterday before
ney NJ: Balou and S. II. Derby Sup
ported the demurrer, and ]. Alfred Ma
Coon contended it should be overruled.
Mr. Ballou, while admitting that in the
Holt case he had taken ground the same
as that taken by Mr.. Magoon now.
quoted the unreversed rulings of Judges
Humphreys and Gear as precedents for
his present argument
The contention for the demurrer was,
briefly, that if there was not properly
constituted court of probate the matter
should have been brought in equity and
that having not been done the court
had no jurisdiction. Judge Gear took
the demurrer under Amusement.
WRIT OF PROHIBITION.
Chief JuAice Frear, sitting alone, gave
a hearing yesterday on the temporary
writ of prohibition he had issued to re-
strain Judge Gear and ]. S. Low from
proceeding with an injunction suit to
restrain A. W. Carter from prosecuting
his petition to the Third Circuit Court
at Kailua, Hawaii, for partition of the
Parker ranch in which the minor holds
a half interest The matter was partly
heard and continued until Monday.
THE JUDGES ANSWER.
Judge George d. Gear has made an
swer for himself to the petition of A.
w. Carter asking the Supreme Court for
a writ OF prohibition against himself and
J. S. Low, to restrain them from pro-
ceeding with an injunction suit to stop
Carriers suit for partition of the Parker
ranch brought in the Third Circuit
Court He denies the jurisdiction OF the
Supreme Court to annul the injunction,
also to prohibit him from proceeding in
the motion, for the reason that. the mo-
ton had been granted previous to the is
suing OF the writ of prohibition. There
was nothing further for the respondent,
Judge Gear, to do in the matter.
The respondent maintains that he did
have jurisdiction to issue the I'M JUNCTION
for stopping the partition suit, concluding
thus: That one of the questions to be
decided in the said application for the
removal of said A. w. Carter is wheth-
err or not the said minor will suffer If
reparable in jury, damage and loss in
case said A. w. Carter, guardian as
aforesaid should be permitted to pros
ecute said suit for partition, and that
this respondent, in the exercise of the
powers conferred upon him by law, is
sued the said order for the purpose of
preventing the prosecution of said suit,
until after said motion for removal
should be heard on its merits, and COM
hitting what it is alleged would be
great wrong to said minor"
J. S. Lows answer, in the fewest
words, Submits to the judgment of the
court herein"
COURT NOTES.
w. c. Achi makes answer in the suit
of Cecil Brown, trustee, VS.. ]. Fernan-
DEE and w. c. Achi, denying all the allie
cations, particularly that 'he was noti-
fed and demanded when the note was
due" and further claiming that as he
was only an endorser OF the note he is
not liable under the laws to pay such
note. as the payee of the note failed to
give notice" etc.
Kinney, McClanahan & Cooper have
filed a dscontnuance of the suit of
Bathsheba NJ Allen ct al. VS.. Giovanni
A. Long, bill for foreclosure of mort
gage.
Cathcart & Milverton, attorneys for
Mollie Mage, enter a demurrer to Fred
w. Maage's supplemental petition for
divorce. 1t sets forth that the allega-
tons of her misconduct are vague. in
definite and uncertain; that the supple
mental petition attempts to set up new
and independent cause OF action alleged
to have accrued since the filing OF the
original petition, and that the supple
mental petition was filed by the libellant
without leave of court first obtained.
Judge De Bolt appointed L. All Leong
administrator OF the estate of Chung
zee Leong, deceased, under S4oo bonds.