The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1912-07-23
COURT IS PUZZLED
BY TANGLED CASE
Turns Back Record in Suit of
Kapiolani Estate Versus
Mary Atcherley.
lFrom sntnrdav s Advertlser.l

FROM SATURDAY AdNertlSer)
The supreme court yesterday handed
down two decisions, and in a third mat
ter declined to express itself on ac-
count of the state of the record. This
last was the question of law raised by
Judge Whitney in the case of Kapio.
lani Estate, Limited, versus Mary,
Atcherley. The case was remanded to
the circuit court for further proceed
ings. 1t appeared to the court that the
record contained no facts on which the
matter could be properly considered,
The court sustained the demurrer
and dismissed the bill in the case of
Joseph Paiko ct al. versus the Right
Reverend Libert II. Boeynaems, etc,
appealed from the circuit court of the
first circuit.
The law, as laid down by the court
in the syllabus preceding the decision
is as follows
"a bill in equity cannot be main
| tanned as n bill of peace to quiet title
in the absence of an averment that the
complainant has established his title
through litigation at law.
ga bill in equity cannot he main
| tanned as one to remove cloud on title
to land where the alleged cloud consists
merely of verbal assertions of a pre-
tended claim.
ga court of equity has no iurisdic-
ton to construe a will where no trust
is involved and the claims of the
parties are of strictly legal interests in
land
Concluding the decision, the court
SAYS:
cit would seem that the real object
of the bill was to obtain a construction
of the will of Manuel Paiko. We hold,
however. in accordance with the great
weight of authority that n court of
equity has no jurisdiction to construe
will where. as here, no trust is in
volved and the claims of the parties
are of strictly legal interests in land.
Decree affirmed.'
]. Lightfoot appeared for the com.
plainants; Larnach & Robinson, for re
spondent.
Blonde Robinson Case Remanded.
"'The decision appealed from is re-
versed on the ground that the circuit
Judge held that he was without power
to proceed in the matter, and the case,
therefore, is remanded to the circuit
Judge for further proceedings not in
consistent with this opinion"
With these words the supreme court
threw back upon the circuit court the
onus of determining the amounts of
attorneys fees, costs and damages in
the case of Young Chun, doing business
as Ye Liberty Theater, against Blonde
Robinson.
"The ruling of the circuit judge,
| SAYS the decision, "that he was with
ont power to consider the motion and
for that reason refused to consider it
was clearly erroneous. That he had the
power to consider the matter, if he
chose to exercise it, is beyond ques-
ton
The points of the law outlined in the
syllabus are as follows:
"Counsel fees, as well as costs and
other charges or damages, paid or sus
tanned to obtain n dissolution of a re-
lstraining order are damages directly
and proximately resulting from the is
suance of the Injunction are recover
able; and such damages may be as
sessed ana awarded in equity, it be
ing within the sound discretion of the
circuit Judge as to whether or not in
each particular case he will himself
dispose of the matter or leave the
parties TO an action at law.
"There is no specific statutory pro
vision relating to injunction bonds
The form and substance of the bond tc
be flied must necessarily be such as the
well established principles of equity
rpouire. +be determination of which
as well as the application, are matter:
resting in the sound judicial discretion
of the circuit judge.