Nakeu v. Mahaulu

• Citation: 22 Haw. 750
• Parties: KAUMAKA NAKEU, KUEWA WHARTON AND NUI MOKE KAAEMOKU v. HORACE P. MAHAULU AND ESTHER U. MAHAULU.
• Decision Date: 22 September 1915
• Court: Hawaii Supreme Court

22 Haw. 750

KAUMAKA NAKEU, KUEWA WHARTON AND NUI MOKE KAAEMOKU

v.HORACE P. MAHAULU AND ESTHER U. MAHAULU.

Supreme Court of the Territory of Hawai‘i.

Argued September 15, 1915.

Decided September 22, 1915.

OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT. HON. W. J. ROBINSON, JUDGE.

Syllabus by the Court

An appeal does not lie from an order overruling a motion to open a decree in equity.Lorrin Andrews for plaintiffs.

N. W. Aluli ( E. K. Aiu with him on the brief) for defendants.

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

OPINION OF THE COURT BY WATSON, J.

This is an appeal from an order made by a circuit judge, sitting at chambers in equity, denying a motion to set aside and vacate a final decree theretofore made and entered in a suit for an accounting, wherein appellants were the defendants and appellees the plaintiffs. The record shows that the bill was filed by appellees on May 14, 1914, to obtain an accounting from appellants as tenants in common of certain lands and premises situate in the city and county of Honolulu, and to recover such sum of money as might be found to be due them as their proportionate share of certain rents, issues and profits alleged to have been collected by appellants from said lands so held by them in common. It was alleged in said bill that appellees were joint owners in fee of an undivided one-half interest in said lands, each owning an undivided one-sixth interest therein, and that the appellants were the owners of the remaining undivided half interest in said premises; that appellants had collected rents from said lands at the rate of $50 a year from the 9th day of February, 1905, to the date of the filing of the bill, none of which moneys had been accounted for by the said appellees. Upon the filing of said bill a summons was duly issued and served on appellants. On the 11th day of September, 1914, nearly four months after the appellants had been served with process, an order of default was entered against them, no appearance having been made by them or either of them. On the 23d day of September, 1914, after the hearing of testimony, a final decree was entered in said cause wherein it was ordered, adjudged and decreed that appellees have judgment against appellant Horace P. Mahaulu for the sum of $408.75, “being their share of money collected by said Horace P. Mahaulu, as alleged in said complaint, together with interest thereon,” and also for costs of court. No appeal was ever taken from the final decree entered on the 23d day of September, 1914, nor was any petition or bill filed to set aside said decree or for a rehearing of said cause. It appears from the uncontradicted affidavit of counsel for appellees, and was admitted by counsel for appellants at the argument, that after said final decree was entered execution was issued thereunder against appellant Horace P. Mahaulu, and the same has been fully satisfied and settled. On the 30th day of April, 1915, a motion was made, entitled in said original cause, to set aside said final decree, one of the grounds of said motion, and the only one relied on in this court, being that such decree was obtained by fraud in that the testimony given at the hearing by Mrs. Kuewa...