Nawahie v. Peterson
| Decision Date | 14 December 1918 |
| Docket Number | No. 1098.,1098. |
| Citation | 24 Haw. 558 |
| Parties | S. W. NAWAHIE, BY HIS NEXT FRIEND, J. LIGHTFOOT v. CHARLES F. PETERSON AND GABALIELA KAMALANI. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT. HON. C. W. ASHFORD, JUDGE.
Syllabus by the Court
Where a suit is brought by a prochein ami or next friend the petition or declaration should show upon its face that the plaintiff is laboring under some legal disability which prevents him from instituting and managing the suit himself.
On pleading fraud either at law or in equity the specific facts constituting the fraud must be stated in the declaration or petition, not conclusions.
J. Lightfoot for petitioner.
Robertson & Olson for respondents.
The record in this case shows that on the 9th day of February, 1918, J. Lightfoot, as next friend of S. W. Nawahie, filed a bill in equity against Charles F. Peterson and Gabaliela Kamalani, the object of which is to set aside a trust deed from Nawahie to Peterson in which Kamalani is a beneficiary on the ground of fraud, for an accounting, and for an injunction.
In response to an order to show cause why a temporary injunction restraining the respondent Peterson, the trustee named in the deed, from collecting the revenue of the property covered by the deed should not be granted the respondent Peterson made a special appearance, and, pursuant to terms offered by the court, elected to continue to collect the accruing revenue and to deposit the same in the registry of the court. Thereafter the respondent Peterson interposed a demurrer to the bill of complaint upon four grounds, viz.: (1) “That the petitioner has not in and by his said bill of complaint made or stated such a cause as entitles him in equity to the relief prayed for, or any relief, against this respondent.” (2) “That no facts are set forth in said bill which show a reason why said S. W. Nawahie may or should appear as petitioner herein by or through a next friend.” (3) “That said bill of complaint does not set forth facts which show that said J. Lightfoot has any authority to appear herein or to maintain this suit as a next friend of said S. W. Nawahie.” (4) “That said bill of complaint sets forth no facts which show that the said J. Lightfoot, as next friend, or otherwise, has any right or interest in the subject matter of said cause.” Subsequently the respondent Kamalani filed a demurrer setting forth the above grounds, and an additional ground, as follows: “That the facts which may be relied on to show the alleged fraud and deceit on the part of said Peterson in connection with the execution by said petitioner of the trust deed, referred to in said bill of complaint, are not set forth in said bill.”
The demurrers were sustained by the circuit judge with leave to amend, but the petitioner elected to stand upon his bill and a decree dismissing the bill was entered.
The averments of the bill of complaint are in substance as follows: That petitioner is eighty-five years old; that by reason of the advanced age of petitioner and the infirmities of mind and body incident thereto, petitioner has from time to time been compelled to rely upon the assistance of others for the transaction of his business affairs, and when so relying upon the assistance of others has been accustomed to place absolute faith, trust and reliance upon them; that on the 26th day of March, 1917, a suit was filed in the circuit court of the first circuit of this Territory wherein petitioner by his next friend Akala Lamnui was petitioner and Gabaliela Kamalani, the respondent named in the present suit, was respondent, the object of which suit was to procure the cancellation of a certain deed, executed by petitioner to said Kamalani on or about the 7th day of February, 1917; that petitioner retained the respondent Peterson as his attorney to act for him in the matter of said suit and paid to him certain sums of money for his services therein; that said Peterson has since acted as his attorney in said suit both in the circuit court and in this court, the records of which suit are referred to in said petition. These records disclose that (Nawahie v. Kamalani, 24 Haw. 82); that shortly afterwards the respondent Peterson represented to petitioner that it would be desirable, proper and necessary for the preservation of the rights of petitioner” to have petitioner appoint said Peterson to care for and protect the property of petitioner, real and personal, and having absolute confidence in said Peterson petitioner placed large sums of money in his hands; that the said Peterson purchased land for petitioner, a portion of which land petitioner desires to retain, and as to the remainder believes that said Peterson charged petitioner a commission amounting to about twelve hundred dollars and included the same in the alleged purchase price of the land; “that on the 31st day of January, 1918, and after the said Peterson had been requested to account with petitioner, the said Peterson filed in the registry office for record, a purported trust deed, purporting to have been executed by petitioner, in which it is pretended that petitioner conveyed all his property real and personal, to said Peterson, in trust, for the benefit of said respondent Gabaliela Kamalani;” “that said petitioner signed many papers at the request of said Peterson, having full trust and confidence in him as aforesaid, but petitioner never knowingly signed a trust deed conveying all of his property to said Peterson as aforesaid, and that the signature of said petitioner to said trust deed, if indeed such signature was ever attached thereto, was procured by the said Peterson by fraud and deceit and was not the free act and deed of said petitioner.” The trust deed in question is attached to and made a part of the bill of complaint. This deed shows that it was executed on the 29th day of May, 1917, and was duly acknowledged by the said Nawahie and the said Peterson on the same date, which acknowledgment recites “that they executed the same as their free act and deed;” that petitioner has requested Peterson to cancel said trust deed and to account with petitioner, which he refuses to do. There is also an endorsement on the bill of complaint by the said Nawahie, that he thoroughly understands the same and has requested J. Lightfoot to prepare and file the said suit for him as his next friend and in his name; that the averments contained in said bill of complaint are true and that he joins in the prayer thereof.
The second, third and fourth grounds of demurrer are to the suit having been instituted by a “next friend” instead of by Nawahie himself.
We are unable to discover any averments in the bill which show that the...
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