The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-03-14

1oI11 vi LA W 49,
OCTOBER TERM, 1907.
THE TERRITORY OF HAWAII, BY
JAMES w. PRATT, COMMISSION
Err OF PUBLIC LANDS, v KAPlO-
LAM ESTATE. LIMITED.
EXCEPTIONS FROM CIRCUIT
COURT, FIRST CIRCUIT.
Argued March ,, 1905.
Decided March Is, 1908.
HARTWELL. C.,J.. WILDER AND
BALLOU, j.
Landlord and Tenant-summary pro-
ceedings-affidavlt to oust Jurlsd1c-
ton of District Court.
An affidavit in the District Court, IN
support of a plea that title TO real
estate is involved, is insufficient I'M
der Supreme Court rule 10 when no
facts are alleged showing title in the
defendant or in some third party I'M
der whom he claims.
Id.-pleading-righ TO bring action
judicial notice-elerlcaI error.
An action for summary possession for
violation of conditions of lease OF
land formerly crown land may proper
w be brought in the name of the
Territory by the Commissioner OF
Public Lands.
The court takes judicial notice that the
title in the lands formerly known as
crown land is now in the United
States and that the Territory is by
law entitled to reenter and recover
possession for nonpayment of rent.
A clerical error, explained in an instru-
ment annexed TO the complaint and
10 Of - harm less
Courts-judicial question - crown
lands.
A. claim that Art. 90, Constitution of
the Republic of Hawaii is invalid,
which declares that the portion of
the public domain heretofore known
as crown lands then was, and there
tofore had been, the property of the
Hawaiian government, does not pre-
sent question for judicial inquiry.
OPINION OF THE COURT BY HART
WELL, CT.
Exceptions are brought by the de-
PENDANT to the rulings and judgment
of the circuit court IN favor of the
plaintiff in an action which the plaintiff
brought in the district court of Homo
lulu under the provisions of Oh, 1873 Il.
L. to recover possession of certain land
leased by the crown land commission
ers to Kapooloku July /, 1882, for the
term of thirty years at an annual rental
of 1920 payable in advance to the COM
missioners or their successors in Of
fee, the lessee covenanting TO pay the
rent and the lease containing a proviso
that upon nonpayment of the rent re-
served it should be lawful for the COM
missioners and their successors in Of
fee without warrant or other legal
process to reenter and repossess the
premises, copy of the lease being at
tached TO and made part of the COM
plant. The complaint AYERS that the
lessee devised the land to Kapiolani
by her will of November, 1898, admit
ted to probate, as appears in probate
record 2990, the assignment of the lease
to David Kawananakoa and Jonah Ka-
lanianaole by deed of February 10, 1898,
and by them to the defendant by deed
of August Z, 1899, and that the defend
ant holds the premises without right
because of failure to pay rent, for which
the sum of 1920 was due. The district
court gave Judgment Cor the plaintiff
on the evidence and admissions after
having overruled the defendant IS plea
to the jurisdiction and demurrer. On
defendant IS appeal TO the circuit court
it renewed it's plea to the jurisdiction
which was based on the ground that
title to real estate was involved in the
determination of the cause as shown by
an affidavit of its managing director
Colburn that he claims and believes
that the Territory has no title in the
land or right to maintain the action.
Tho 1Alna haInD loj 1afo,,l
ant demurred to the complaint on the
grounds that the Territory has no right
to bring the action in its name by
Pratt. the commissioner, or otherwise
than in the name of the Attorney Gen
eral; that the complaint does not show
cause of action; particularly that the
Territory could not have leased the
land July i, 1882, as alleged in the
complaint, and that the complaint does
not show the title to be in the Terri
tory or the defendants succession to
the title of the lessee. The demurrer
was overruled and jury being waived
the defendant pleaded orally the s'gen-
eral ISSUE The case was tried and
judgment given for the plaintiff upon
the evidence of the lease admitted
against the defendants objection that
IL was not executed Dy the pldlnC1u and
upon the defendant IS admission that the
lessee devised the leasehold to Queen
Kapiolani who conveyed it by deed of
February 10, 1898, to David Kawanana-
koa and Jonah Kalanianaole who, by
deed of August Z, 1899, conveyed to the
defendant which now holds under the
lease; that no rent has been paid by
the defendant since June 80, 1902, and
that if any was due to the plaintiff
at the date of the commencement of
the action, September IL, 1907, it was
the sum of 1920.
ID The plea to the jurisdiction is
based on the proviso in Sec. 1862 R. L.
relating to the jurisdiction of district
courts 'sthat such courts shall not have
cognizance of real actions nor actions
in which the title to real estate shall
come in question: Rule Is of the
Supreme Court, entitled defense of
Title in District Courts,'' provides as
follows:
whenever, in the District Courts, in |
defense of an action of trespass, or a |
suit for the summary possession of |
and, or any other action, the defend
ant shall plead to the Jurisdiction in
effect that the suit is real action, |
Or one in which the title to real es-
tate is involved, such plea shall not |
be received by the court. unless ac-