In re Ryan

• Decision Date: 18 September 1930
• Docket Number: No. 1964.,1964.
• Citation: 31 Haw. 547
• Parties: IN THE MATTER OF THE GUARDIANSHIP OF ELEANORA AND KATHERINE RYAN, MINORS.
• Court: Hawaii Supreme Court

31 Haw. 547

IN THE MATTER OF THE GUARDIANSHIP OF ELEANORA AND KATHERINE RYAN, MINORS.

No. 1964.

Supreme Court of the Territory of Hawai‘i.

Submitted September 2, 1930.

Decided September 18, 1930.

OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT JUDGE FIRST CIRCUIT. HON. E. M. WATSON, JUDGE.

Syllabus by the Court

In the absence of statute, the phrase, law of the case, as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.

Thus a ruling on demurrer is not such a final adjudication that the court may not at any time before final judgment reconsider its ruling and enter a contrary one.

A circuit judge is not bound, as a matter of law, to follow the earlier rulings of another circuit judge in the same case, although the usual practice is to refuse to reconsider matters already decided.

Where a circuit judge has overruled a demurrer and another circuit judge, thereafter hearing the same case on its merits, has otherwise by final decree determined the same issue, this court on appeal is free to affirm said decree.

A circuit judge having regularly appointed a guardian for the estate of an infant under sixteen years of age, the infant after she attains that age has not the right at her mere election to have her guardian thus appointed displaced and a new one of her own nomination substituted.

Ulrich & Hite for petitioner.

Huber, Kemp & Stainback and A. J. Buscheck for the guardian.

PERRY, C. J., PARSONS, J., AND CIRCUIT JUDGE STEADMAN IN PLACE OF BANKS, J., ABSENT.

OPINION OF THE COURT BY PARSONS. J.

This case is before us upon appeal from a decree of the circuit judge in probate in the division of domestic relations. The decree appealed from denies and dismisses the petition of Katherine Ryan, a minor, appearing in her own person and by Hattie Silva, her mother and next friend, for the removal of Bishop Trust Company, Limited, as guardian of the estate of said minor, and for the appointment of a successor guardian.

The petition alleges in effect, among other things, that the Bishop Trust Company, Limited, was duly appointed guardian of said estate on October 3, 1921, when said minor was eight years old; that said minor is now of the age of sixteen years and over; that the said Bishop Trust Company, Limited, has conducted the affairs of said guardianship in accordance with law and is in all respects a fit and proper person to continue to act as such guardian, except as herein set forth, to-wit, that the “petitioner * * * asks and desires * * * that said Bishop Trust Company, Limited, file its final accounts herein, and then and thereupon be removed as guardian” of said estate and “that then and thereupon Edwin Kekuku,” therein alleged to be in all respects a fit, proper and suitable person for that purpose, be “named and appointed successor guardian in the place and stead of said Bishop Trust Company, Limited.” The guardian demurred to said petition on the grounds that the same did not state facts sufficient to constitute grounds for the removal of said guardian nor for any other relief and that it did not appear from said petition that said guardian had become incapable of discharging its duties or unsuitable therefor or that it would be for the best interests of said minor to remove said guardian.

Upon submission Judge Davis of the third division, sitting temporarily in said division of domestic relations, and to whom said case had been assigned, overruled said demurrer and the guardian thereupon answered to the merits, admitting the allegations contained in paragraphs 1, 2 and 3 of said petition, and, because of insufficient information, neither admitting nor denying the allegations of paragraphs 4, 5 and 6 thereof, but leaving petitioner to her proof of the same. Thereafter the minor filed her nomination of the Union Trust Company, Limited, as alternate successor guardian in the event that the court should not see fit to appoint her first nominee, Edwin Kekuku. Thereafter the matter came on for hearing upon its merits before Judge Watson, judge of the division of domestic relations, upon the petition, answer, nomination of alternate successor of guardian and testimony taken before the third judge, which by stipulation of counsel in open court constituted all of the facts and evidence which either party desired to offer on said hearing. It was also stipulated by counsel in open court that the mother of said minor has at all times had the custody of the person of the minor and the care of her education. That the Union Trust Company, Limited, is to all intents and purposes a fit and proper person to act as guardian of any minor was also stipulated. Said the trial judge: “The single issue presented for the decision of this court is, whether a minor, for whose estate a guardian has legally been appointed by this court, whilst said minor was within the age of sixteen years, on attaining that age, has the right, at her mere election, to have such guardian displaced, and a new one, of her nomination, substituted.” The foregoing issue was decided against the contention of the minor and the decree aforesaid was entered.

Upon appeal the minor urges (1) that “the law of the case had been established by Judge Davis in overruling the demurrer;” that “the action of Judge Watson in dismissing the petition was substantially nothing more or less than the exercise of an assumed appellate jurisdiction over the order of Judge Davis and was nothing more or less than an overruling by Judge Watson of the order sustaining the demurrer entered by Judge Davis.” Such action, it was urged, was beyond the jurisdiction of the judge attempting to exercise the same. (2) That a minor, for whose estate a guardian has legally been appointed by the proper court while said minor was under the age of sixteen years, has the right on attaining the age of sixteen years, at her mere election by petition, to have such guardian displaced and a new one of her nomination substituted.

The foregoing contentions will be considered in the order in which they are above recited.

(1) It is...