The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-08-19
LOWS CASE
S|DETRACKED.
Judge Gear Places Two
Motions In State
Of Suspense.

scented two different orders to Judge
Geai for his signature yesterday after
noon. They were to dismiss the motions
of the guardian ana the mother of the
minor, which motions were to cancel
Lows authority as next friend and to
dismiss his suit for the removal of the
guardian The orders seemed to have
been drafted under the impression that
Judge Gears decision that morning
was that the motions of A. w. Carter
and Mrs. Knight should be dismissed.
Judge Gear asked the attorneys II
they wished their own motions ordered
dismissed as he had but decided that
the motions should be continued. This
put different phase on the matter,
so that nothing was done further. Had
the decision been for dismissal, the at
torneys for the movants would have
sued for writ of prohibition in the
Supreme Court, to stay proceedings on
Lows petition until Lows relations to
the ward could be investigated as pray
ed for by the movants.
The continuance of the motions in
stead of their being granted or dismiss
ed prevents the particular phase of the
whole controversy therein involved
from being reviewed by the Supreme
will not take jurisdiction of orders or
DEGREES that are not final in their effect.
The motions are simply hung up by
Judge Gears decision until Lows petit
ton is set for hearing on it's merits.
THE DECISION.
In written decision rendered yester-
day morning, Judge Gear continues the
question of j. S. Lows authority to act
as next friend of Annie r. *. Par
ker, minor. until the petition for the
removal of the minors guardian comes
up on it's merits. His conclusion is as
follows:
Taking the case then solely upon the
pleadings in the case and the motions
of the movants we find that the guar
dian Is charged with sufficient to war;
rant the court in investigating his con-
duct. Vp to this time no answer has
been filed specifically and categorically
denying the allegations for removal.
The next friend asks only that the
present guardian be removed The
averments of the guardian on his mo-
ton are such that it seems to me it
would require an investigation into the
merits of the motion of the next friend
to remove the guardian. At the pres
re the motion to remove the guardian,
and to proceed to a hearing upon the
motion of the guardian to remove Low
would if the motion should be denied,
involve two trials of practically the
same question. If the motion of Low
is cot in the interest of the minor 1t
will S. appear during the hearing OF
his motion, and the court cannot see
how anything is to be gained by an in
dependent hearing at the present time. |
A demurrer is on file to the amended
petition of Low. The court is prepared
to take 1t up Immediately, and if the
matter proceeds so that an answer is
necessary the court can then hear the
two motions at the same time.
Considering the case then solely upon |
the affidavits and papers referred to
by the guardian it seems to me that
this is not a case where such "a strong |
case is shown by the verified motion |
as will require the court to direct an
inquiry at this time under the circum-
stances of this case. There is not such |
a showing that the court must see that |
there is a probability that the infants |
interests will be prejudiced' at the pres
ent time. AS 1t is not incumbent upon
the court to refer this matter for in
quiry, and as the court is convinced |
that justice will be better subserved by |
continuing this motion until after an
answer, If any, is filed by the guar
dian and until a hearing can be had |
which will be full and complete and il |
which the whole matter will be dis : |
posed of, the court will continue t e
matter until such time as the motion
to remove the guardian is set for hear
irNer tic, nd
AS stated by the court, the matter
decided now is as follows:
u. S. Low having, as next friend of
Annie It. Is. Parker, minor, petitioned
for the removal of A. w. Carter as
guardian of said minor upon, grounds
stated in the petition, the guardian now
moves that the authority of said Low be
rescinded and that the suit be dismiss
ed, upon the grounds:
list. That Low is representing and
has hostile interests to those of, the
ward, which are necessarily involved
in proceedings to remove the guardian.
''2nd. That Low is not bona fide
next friend but is a mere intermeddler,
and is seeking to aid Samuel Parker
in obtaining management of the es-
tate of Samuel Parker, and to secure a
right of way over the land of Paauhau
for the Hamakua Ditch Company for
as small a consideration as possible,
and also to promote a sale of the Paau-
hau land upon terms acceptable to the
Paauhau Plantation Irrespective of the
interests of the minor. Another grolN1d
Is stated that LOW is conspirng with
Parker and others to use the estate of
the minor 10 promote his and their In
forests, and Is seeking Ia remove the
guardian not because he Is In fact unit,
or should be removed, but because he
Il an obstacle In the way of the accom-
pllshment of the purposes at said Low,
I'm support OF the motion the whole
record Is made a part of the motion and
also the allegations 0f fact contained
~ tha matter of Airs knight
Ni'llsahelh ] knight mother ~ the
wind. alan IIlna a slmIlAr mnllnn hAanl