The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-09-24
APPEAL On FINE
POINTS Of LAW
Mrs. Mary Atcherley Takes
Case to the Supreme
Court.

In the Court of Land Registration
yesterday decree was entered regis
| tering the title of Levers & Cooke,
Ltd. to the property at the south COR
ner of Queen and Punchbowl streets
this decree the Kapiolani Home has
| appealed, as it claims that the proper
| ty is subject to charge of about $4,000
due the Home from the two princes,
David Kawananakoa and Jonah Ka-
lanianaole.
Mary H. Atcherley also appeals from
the decree. as she claims Apana / of
| L. C. A. 129, r. P. 1902 to Kinimaka
She bases her appeal on a number of
points of law, which in the argument
before Judge Weaver were aoknowl-
edged to be most admirably and
| strongly put by her attorney, Lyle A.
| Dickey, both by Judge Weaver and
by .. L. Wilmington, the attorney for
| Levers & Cooke
In the notice of appeal the grounds
for appeal are given: That the Supreme
Court of the Kingdom of Hawaii and
z. FL. Allen, the Chief Justice sitting
at Chambers, had no jurisdiction of
the subject matter upon the petition
of David Kalakaua filed against Rich
ard Armstrong, guardian of the minor
children of Kinimaka and Pal, and no
jurisdiction to make any such decree
as was entered in 1858 in said matter,
| as the Board of Commissioners to
Quiet Land Titles had exclusive and
final jurisdiction over ali rights to land
arising prior to the creation of the
Board and said petition of Kalakaua
was founded on a claim by him that
said Kinimaka was not entitled to the
award of said land at the time it was
awarded to him by said Board of Com
missioners to Quiet Land Titles.
That the Supreme Court of the Ha-
waiian Islands in probate and G. NJ.
Robertson, Justice thereof sitting in
probate, had no jurisdiction in 1858 to
admit the oral will of Leila H. Kaniu
Of 1843. as there was no personal prop
erty shown to belong to the estate
and the Board of Commissioners to
Quiet Land Titles had exclusive and
final Jurisdiction over all rights to
land arising prior to the creation Of
the award.
That the probate in 1858 of the will
of Leila H. Kaniu. gave David kala-
kaua no rights or interest of any kind
in the land in controversy.
That the Supreme Court and e. Fl.
Allen, Chief Justice sitting at Cham
bers, had no jurisdiction over the per-
son Of Moses Kapaakea Kinimaka in
said action brought by David Kala-
kaua against Richard Armstrong,
guardian of the minor children of XII
nimaka and Pal for the reason that
said Moses Kepaakea Kinimaka was
not named in said action as party
thereto.
That the evidence in the case men
toned did not support any finding that
David Kalakaua had any right to a
Land Commission award in. 1849 or
1858; that he had never had any title
to said land; that any fraud actual or
constructive had been committed by
Kinimaka in his application before the
Land Commission; that any contest
was made ON behalf of the minor Moses
Kapaakea Kinimaka; that the record
of said case does show that at the time |
Kinimaka. filed a petition before the |
Land Commission David Kalakaua had |
no title to said land and no right to an |
award; that Kinimaka did not obtain |
an award by fraud; that Kinimaka |
had been granted an award for said |
land by the judgment of a court of /
competent jurisdiction both of parties |
and subject matter, to wit, the Board |
of Commissioners to Quiet Land Titles,
which was not subject to collateral |
attack.
That there has been no 1aches shown
by Moses Kapaakea Kinimaka or by I
Mary H. AtcherIey. That Mary Fl.
Atcherley acquired no interest in said
land by inheritance from her father
on his decease in 1884, and inherited
no interest in the life estate of Kaniu.
That the statute of limitations does
not commence to run against a re-
whose right to possession |
is limited after two life estates until |
the death of both life tenants, though
the life estates may have terminated
prior to the death of the life tenants
by forfeiture or merger.
That no title and property rights
have been built on any decree of 1858
as against Mary II. Atcherley or her
privy, Moses Kapaakea Kinimaka, and
that the principle of stare decisis has
no application to this case.
-.s.$ .s%--------