In re Application of Scott

• Decision Date: 25 February 1915
• Citation: 22 Haw. 459
• Parties: IN THE MATTER OF THE APPLICATION OF M. F. SCOTT AND NETTLE L. SCOTT FOR A WRIT OF PROHIBITION AGAINST HONORABLE T. B. STUART, CIRCUIT JUDGE, FIRST JUDICIAL CIRCUIT, TERRITORY OF HAWAII, AND JOSEPH LIGHTFOOT, ESQ., MASTER IN CHANCERY.
• Court: Hawaii Supreme Court

22 Haw. 459

IN THE MATTER OF THE APPLICATION OF M. F. SCOTT AND NETTLE L. SCOTT FOR A WRIT OF PROHIBITION AGAINST HONORABLE T. B. STUART, CIRCUIT JUDGE, FIRST JUDICIAL CIRCUIT, TERRITORY OF HAWAII, AND JOSEPH LIGHTFOOT, ESQ., MASTER IN CHANCERY.

Supreme Court of Territory of Hawai'i.

February 25, 1915

Argued February 17, 1915.

PETITION FOR WRIT OF PROHIBITION.

Syllabus by the Court

It is the usage and practice of courts of equity to refer causes to a master in chancery with directions to hear evidence, and to report findings of fact, and such other matters pertinent to the cause of which the court should be advised, and the power to do so has not been abrogated by section 1648, R. L., but is recognized by section 1834, R. L.

The writ of prohibition will not lie to prevent a master in chancery from proceeding under a reference made in an equity suit, the circuit judge sitting at chambers in equity having jurisdiction to order the reference, as it is only in case of want of jurisdiction that this writ will lie.

M F. Scott for petitioners.

J Lightfoot for respondents.

ROBERTSON C.J., WATSON AND QUARLES, JJ.

OPINION

QUARLES J.

The petitioners, M. F. Scott and Nettie L. Scott, filed their petition, in this court, praying that a temporary writ of prohibition issue prohibiting the respondent Lightfoot from proceeding as master in chancery under orders made at chambers by the respondent Stuart, as third judge of the first judicial circuit, in a partition suit wherein the petitioners are the plaintiffs, and more than one hundred persons are defendants, on the ground that the appointment of such master was made without jurisdiction; and, praying that on final hearing the writ be made perpetual. The order prescribing the duties of the master is as follows:

" This cause coming on for final disposition this 28th day of January, 1915, M. F. Scott, one of the plaintiffs appearing in person, and W. A. Greenwell, Esq., of the Firm of Castle and Withington, solicitors appearing for J. B. Castle and certain other defendants, and Eugene K. Aiu, Esq., appearing for E. N. Pilipo, a defendant, the court being advised from the pleadings and files in this cause that this cause was begun by bill of complaint filed September 3, 1897; that during the seventeen years which have elapsed since the filing of the bill various proceedings have been had herein, among which have been the filing of reports of commissioners, motions by parties to the cause and their solicitors, and partial decrees and interlocutory orders by the court, the result of which is nothing but a maze of uncertainty, not only as to the effect thereof, but as to the present status of the cause, and it further appearing to the court that it is doubtful if all of the original 142 parties defendant named in the bill or their grantees owners of the lands sought to be partitioned in North Kona on the Island of Hawaii, known as Holualoa 1, and 2, 7330 acres in extent, the Hui Aina O Holualoa divided into some 350 shares or undivided interests, are now within the jurisdiction of the Court, some of them never having been served by process or having submitted themselves voluntarily to the jurisdiction of the Court and no substituted service by publication having been made, and it further appearing that claimants of interests in said lands are in possession and occupation thereof and others are not, and that certain persons not parties to the cause have been collecting rents in large amounts by virtue of certain claims of the ownership of interest in the said lands, and it further appearing that the parties this day before the court are not ready to proceed and no suggestion being made by them as to what steps remain to enable the court to make final disposition of this cause, the court deeming this cause, because of its intricacies, one which should receive a thorough investigation by a Master in Chancery, and a report thereon from such Master, the Court hereby appoints A. F. Judd, an Attorney at Law of this Bar, as Master in Chancery herein, and orders him to fully investigate and report upon the record herein; to take such further evidence as any parties may see proper to introduce and ascertain and report if all owners of said land have been made parties hereto, and if all persons claiming an interest therein and receiving lands therefrom as such claimants have been made parties, and to take all evidence that may be offered by any of the parties in reference to the matters embraced in said cause, and report said findings and his conclusions of law and of fact in reference to the same, and do and perform all things that might be done and performed by final decree as said Master may recommend to be entered.

The Court doth empower said Master in Chancery to exercise all powers that are usually exercised by Masters in Chancery, fixing the date or dates of hearings, and notifying the parties to be present and enter upon hearings and make note of any failure to obey his directions or orders in the premises, and report the same to the Court; 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.

That before entering upon the duties herein placed on said Master in Chancery, he shall file the customary oath with the Clerk of this Court to well and truly perform his duties according to law under the orders herein given and powers herein conferred upon him and those appertaining generally to such an appointment.

" (Sgd.) T. B. Stuart

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