The Hawaiian gazette., 1911-08-08
DECLINES TO ORDER
DEED CANCELLED
yuDon ROBINSON HANDS DOWN
IMPORTANT JUDoMBNr IN
LAND CASE.

who made Maria Adelaide Better.
court Briozo de scqueira Encamaeao
defendant in a suit in equity to cancel
and annul deed AZ the defendant
wall Attorney r. b. Anderson, Of
Kinney, Prosser, Anderson & Marx, at.
torneys for complainant, noted an ex.
ception and gave notice Of appeal.
In his decision, handed down yester.
day, Judge Robinson says:
"This is a bin in equity to cancel
and annul deed AS the defendant
is not now, and as far as the record
shows, never was resident of the Ter
ritory of Hawaii, personal service of
summons and process was not had upon
her within the jurisdiction of this
court. However, the record shows pub
LEGATION of the summons issued herein
in accordance with an order made, and
further that a certified copy of the
summons and of the bill of complaint
were deposited in the United States
ostofiee at Honolulu, with the postage
thereon fully prepaid, directed and ad-
dressed to the defendant at her last
known place of residence.
Acquires no Jurisdiction.
"The defendant, appearing special
ly for the purpose of the motion,
moves the court that the above enti-
tied action be dismissed, for the rea-
son that it appears that the court has
not obtained jurisdiction over the per
SON of the defendant, the cause OF ac.
tion, if any, stated in the complaint
icing transitory in its nature, and the
suit being in personam and not in rem
"In my opinion, the Weight of au.
thority is Overwhelmingly in favor OF
the proposition that the court acquires
no Jurisdiction of the subject matter
of the action in cause such as the one
at bar, in which only substituted OF
constructive service of process was had
upon the defendant 81
"The facts Feeited iHi the case OF
Hart v. SAMSON, Ito us. ISL; IS Law
Ed, 101, make out a case practically
on all-fours with the case at bar, and
is especially decisive of the question.
presented by the motion now under con
sideration. y aD
Gin that case Mr.. Justice Gray, il
delivering the opinion of the court
) says;
'sWhere the Land Lies. -
Generally, if not universally
equity jurisdiction is exercised in per
sonam, and not in rem, and depends
upon the control of the court over tn,
parties, by reason of their presence O
residence, and not upon the place wher
the land lies in regard to which relic
) is sought. Upon, a bin for the remova
of cloud upon title, as upon a bill
for the specific performance of al
agreement to convey, the decree, un
less otherwise expressly provided b,
} statute, is clearly not d Judgment il
{ rem, establishing a title IN land, Blu
operates in pefsona1h only, by restrain
ing the defendant from asserting hi
claim, and directing him to deliver u
his deed to be cancelled, Or to exeeut
a release to the plaintiff, -
1.-THE attention of the court has no
: been called to any statute of this Tel
e ritory, which either expressly or b
4 implication provides that the decree i
: a case such as the one at bar sha
1 operate as Judgment in rem establish
y ing title in the land concerned or a.
e fected by judicial determination @
the facts recited. The motion j
!. granted and the bill is dismissed, q
compliments cost.
h Commissioner Appointed.
all Judge W, j. Robinson yesterda
\ handed down decree of fOreclosuI
and sale in the case of J.. d. Marque
against Irene M. Cornwell and w.
n Cornwell, John f. DoIburn. and Charl,
q T. Wilder, tax assessor. NJ. T. Simon
n ton, clerk of the court, was appointe
TIA commissioner to sell the prOpert
n foreclosed.
e On June IS, 1904, Mr.. and Mrs. Cor
# well borrowed $3.50 from the Bank
II Waikiki, Maui, on a promissory not
giving o mortgage as security III
bank assigned the note and mortgal
to, A. Lewis, Jr., and he to j. ID Ma
d ques, who brought suit for 1862. 5
: principal and interest. Defendants s
- up the statute of Limitations, but Il
n conrt ordered the mortgage foreelos,
'e and the land sold at public auction
9 satisfy the Judgment.
n Referred to Master.
On the motion of Attorney C. H. Oh
son, Judge Robinson yesterday refers
the accounts of the trustees of the A
C. nederia Annoy Haalelea estate to j,
10 Bachelor, as master, for examinotic
~ and report.
The. fifth annual account of Gee
: Brown, guardian of the property
David L. johnson, William M. Johnso
Edith johnson and Mary johnson, n
a nors, for the year ended July 81, "
~ approved and allowed AZ filed by JUDD
Is Robinson yesterday. The guards
Il charged himself with e125411 Al
50 asked to be allowed s11l9.l9 expens
lures, leaving balance on hand
slS4.02,