Carter v. Gear

This was a writ of error to review a judgment of the supreme court of the Territory of Hawaii denying a writ of prohibition.

The facts of the case are substantially as follows: On July 27, 1904, one Low, as next friend of Annie T. K. Parker, a minor, filed a petition before the defendant, George D. Gear, judge of the first judicial circuit, in probate, at chambers, asking for the removal of Alfred W. Carter, plaintiff in error, as guardian of the estate of said minor. He had been originally appointed such guardian September 29, 1899. The petition was entitled 'In the Circuit Court of the First Judicial Circuit, Territory of Hawaii. In Probate. At Chambers,' and was in fact filed before the circuit judge sitting at chambers. A demurrer was interposed to the petition upon the ground that the circuit judge had no jurisdiction of the proceedings, for the reason that the statute conferring judicial powers upon the judges at chambers was in conflict with the organic act of the territory.

The demurrer was overruled, and the jurisdiction of the court sustained, apparently with some doubt, by the circuit judge.

This petition for a writ of prohibition was then filed by Carter in the supreme court of the territory against the defendant, Gear, as circuit judge, and Low, the next friend of Annie T. K. Parker, praying that the said circuit judge be prohibited from taking further cognizance of the petition for the removal of Carter, or proceeding therein until the further order of the supreme court. After a full hearing the supreme court affirmed the judgment of the circuit court, and dismissed the petition.

Messrs. Joseph J. Darlington and William F. Mattingly for plaintiff in error.

[Argument of Counsel from pages 349-350 intentionally omitted]

Mr. John S. Low, guardian, in propria persona.

[Argument of Counsel from pages 350-352 intentionally omitted]

Mr. Justice Brown delivered the opinion of the court: