The Hawaiian gazette., 1904-07-26

ON POINTS
Carter Wins PIeadings
But He Must Put
Up Defense.

Judge Gear handed down q batch of
decisions yesterday in the cases revolv-
ing around the Parker Ranch While
Samuel Parker and j. S. Low, moving
from different standpoints to the at
tack on A. w. Carter manager of the
ranch, lost in cases and points yet
Carter is held subject to making a
defense of his management of the
ranch and of his conduct as guardian
of Annie 7. X. Parker, minor, half
owner in the property This appears
in the first decision reported below,
which being on the first case entered
may be taken as the kingpin of the
entire batch both of the Honolulu and
the Kailua courts.
In the matter of the application of
j. $. Low, next friend of Annie Hehua
Is. Parker, a minor, for an order re-
moving A. w. Carter as guardian of
the minor, Judge Gear rendered a
lengthy decision yesterday. He refuses
to dismiss the application, while indi-
eating flaws in the petition. In the
concluding portions of the decision the
court says:
IF the allegations as to the charging
of excessive commissions and the re-
fusal to consent to the sale of the
to me that a cause is stated for the
removal of the guardian and the
charges impose upon the guardian the
burden of a defense.
1.-THE allegation, however, that the
guardians agent has with the guard
ian's full knowledge 'mismanaged the
affairs of said minor is obnoxious to
the special demurrer, MS it does not
ment.
LAS to the seventh paragraph, there
fore, so much of it as alleges the mis-
management of the ranch is insuffici-
ent and the demurrer thereto will be
sustained. If counsel wish to intro
duce proof on this point. the complaint
will have to be amended
The allegations as to appointing an
incompetent agent and bringing par
tition proceedings not beng specially
attacked by demurrer, and a cause
being sufficiently shown to compel the
guardian to answer the application, the
argument of counsel on these last
points will not be followed up. 1t
would seem however that the COM
plant, If amended, should state facts
showing the irreparable injury alleged.
This seems to me to be elementary in
the rules of pleading. Upon amend
ment of the application the parties
will be given five days after service
of amended pleadings within which to
plead.
THE OTHER CASES.
Samuel Parkers application for an
injunction to restrain a. w. Carter,
guardian of Annie 7. *. Parker, from
interfering in the management of the
Parker Ranch was denied. One ma
terial issue raised in this case seemed
to dispose of the matter at that time,
which the court stated thus
while the complaint alleges a part
nership and the right of a surviving
partner in the complaint. the return
to the order to show cause alleges that
the partnership has already been
wound up and all liabilities and all
claims for and against the estate of
deceased have been settled The COM
plant in partition Is also made part
of the return and the facts therein
alleged are averred in the affidavit of
defendant to be true. This complaint
alleges a holding in common and mega
tives holding by complainant as sur
viving partner"
In the matter of the petition of ]. S.
Low, as next friend of Annie T. *.
Parker, for license to sell real estate,
the demurrer is sustained and the pc
ttion dismissed. on the ground that the
petition could not be granted under the
statute, as It was brought in the name
of the next friend and not by the guar
dian. The mother as we'll as the guar
dian of the minor had demurred to the
petition.
]. Alfred Magoon and J. Lightfoot
appeared for j. 5. Low and Samuel
Parker in these cases, while A. w.
Carter was represented by Kinney. Nc
Clanahan X Cooper Robertson & Wild
err and Ballou 4 Marx and Mrs.
Knight. mother of the minor, by j. j.
Dunno.