23 Haw. 625 | Haw. | 1917
At the time the petition for a partition of the lands herein partitioned was filed (September 3, 1897) the lands of Holualoa 1 and 2 were owned by the Hui Aina of Holualoa in which hui there were originally 400 shares, but the hui later purchased from shareholders 46.75 shares, leaying outstanding shares to the extent of 353.25. October 1, 1898, the circuit judge sitting at chambers in equity (hereinafter for convenience called the court) made a decree appointing W. A. Wall and J) D. Paris commissioners to view the lands sought to be partitioned and report to the court what parts of such lands were susceptible of division in kind without injury to the parties and what portions, if any, were not susceptible of such division; what parts, if any, should be sold and the manner best suited to make partition among the parties. February 2, 1899, the said commissioners reported to the court recommending that certain of the lands be sold and the rest of the lands be divided in kind among the shareholders in proportion to the shares held by each. June 13, 1899, a supplemental decree was entered by consent of parties directing a sale of certain of the lands by the commissioner, Mr. Wall, and thereafter such sale was made and report of the sale made by the commissioner, and which was confirmed December 14, 1903. December 17, 1903, on the petition of the commissioner, an order was made by the court authorizing him to employ some person or corporation to make an abstract showing the various owners, at a cost not to exceed $750. The commissioner obtained from Castle & Withington a list of shareholders in the hui, considerable time and work being required to make it and for which they were paid $250. This list purported to show shares outstanding, held by various parties, to the extent of 408.583 shares, and on this basis the money received from the sale (after paying certain costs and ex
A supplemental report was made by the master and filed March 23, 1916, passing upon sundry claims for fees and
The plaintiffs, as appellants, attack the decree generally on the ground that the master and the circuit judge were both disqualified as both had a pecuniary interest in the subject-matter of the suit, and on the further ground that
The plaintiffs also attack the decree appealed from as error on the further ground that the time within which the master was given to hear the parties and make his report had expired long before he presented his report; that his said report was without jurisdiction, null and void; and that the decree confirming it was without jurisdiction, null and void. The order appointing the master to hear the parties, examine the record in the suit and report its status together with evidence taken by him, and draft such decree as he should recommend, contains this provision among others, “that the said master in chancery shall proceed as speedily as possible in the said matters and shall file the report of his doings as aforesaid within sixty days from this date or give sufficient excuse for not so doing.” The record shows that the master held a number of hearings, which were attended by parties plaintiff and defendant, more than sixty days after his appointment, without objection, and this point does not appear to have been raised either before the master or before the court. The master did a large amount of work and his recommendations as to the decree apportioning funds arising from sales undistributed and allotments of lands in ■ severalty were substantially accepted and acted upon by the court to the benefit of the parties, all of whom accepted such benefits without question: Now on this appeal from a supplemental decree allowing attorney fees, costs and expenses in part and disallowing such claims in part, for the first time an attack is made upon the jurisdiction of the court and master on the ground that the master did not act within the time required by the order appointing him. We take the
The only questions left for us to determine are as to the correctness of the supplemental decree in so far as it allows attorney fees, costs and expenses and disallows claims for other attorney fees, costs and expenses, and refuses to permit the plaintiff M. F. Scott to file..a supplemental petition bringing in as a party defendant C. K. Ai for the purpose of having the said Ai account for rents collected for twenty-two acres of the land apportioned under circumstances alleged in said supplemental petition, and we will proceed to consider these questions.
The allowances appearing in said supplemental decree which have not been objected to by the parties herein are approved and will stand. The disallowance of claims, except that of M. F. Scott for $750 for making an abstract, is approved.
The-allowance of $500 to W. R. Castle, J. B. Castle and the Kona Development Company for attorney fees to be paid to their attorneys Castle & Withington, and the allowance of $250 to E. N. Pilipo and E. K. Pilipo, attorney fee to be paid to their attorney Eugene K. Aiu, were improper. There is some evidence tending to show that services were rendered by the attorneys named which would tend to the common benefit of all the cotenants, but' that evidence is too indefinite and vague and the value and beneficial character of the services were too uncertain to be estimated under the evidence in the record. The two Pilipos were
The refusal of the court to allow Mr. Wall his further claims for compensation was authorized under the showing made and such disallowance is approved. Mr. Wall in testifying admitted that he had received for services and expenses in the suit the sum of $4828.18. The various items, claims and allowances theretofore made to him are not in the record before us. Mr. Wall testified at the hearing before the master that his present claims for further compensation were for services rendered, were reasonable, had not been paid and were not included in any claim theretofore allowed him. The court below had the entire record before it and having found that Mr. Wall had been overpaid and that the present claims presented by him be disallowed we will not disturb its conclusion in this regard. The claims of Mr. Wall which were disallowed in the supplemental decree appealed from are for services rendered in 1916 and appear to have been caused by the incompleteness of the plats of allotments made by him in that such plats did not give courses and distances of the exterior boundaries of the various parcels of land allotted. We do not regard the evidence as sufficient to show that
The disallowance of the claim of M. F. Scott in the sum of $750 for making the abstract in this case was contrary to the evidence and facts shown by the record. An order had been made by the court: authorizing Mr. Wall, commissioner, to employ some person or corporation to make an abstract at a cost not to exceed $750. Mr. Wall was unable to get such abstract at the cost limited by the court. He employed Mr. Scott to make an abstract under an agreement that Mr. Scott was not to be paid anything for it “unless the same was found to be accurate, complete and correct.” The abstract made and furnished by Mr. Scott proved to be accurate and correct and was used to the benefit of all the parties and by reason thereof this whole complicated partition suit has been brought to a successful conclusion by the master and court and the evidence shows that it was worth more to make it than the amount charged for it. Different persons engaged in abstracting had refused
We hold that the court erred in refusing to permit the filing of the supplemental petition presented by the plaintiffs for the purpose of bringing into this suit C. K. Ai to have him account for rents alleged to have been collected by him under the claim of ownership of the share formerly held by one Kamale, under which claim twenty-two acres of coffee land held by the tenants named in said supplemental petition under lease executed by one Akau who had acquired the Kamale share, the interests of said Akau having passed to said C. K. Ai, as alleged in the profv fered supplemental petition. All of the cotenants, plaintiffs and defendants, are interested in such rents which the supplemental petition alleges were collected and received by said C. K. Ai in trust for all of the parties to this suit. The court was in error in deciding that the plaintiffs should sue the said C. K. Ai in their own right. Owing to the large number of parties to this suit and the manifest trouble of bringing them into another suit for accounting the entire matter should be settled in this suit and with that end in view we hold that said supplemental petition shall be filed, that process issue against the said C. K. Ai and he be required to account for the rents collected by him as alleged in said supplemental petition unless he shows a good and proper defense to the matters therein alleged and set forth.
Another supplemental petition was filed by one of the plaintiffs in 1914 and an order to show cause against the said C. K. Ai why he should not be made a party defendant and account for rents received was made and on return of said C. K. Ai to the said order to show cause the said order was vacated, from which order so vacated an appeal was had to this court. On that appeal the order vacating
The supplemental decree appealed from is vacated and the cause is remanded to the circuit judge with instructions to make a full and supplemental decree disposing of the matters herein considered in conformity with the conclusions and views herein expressed.