§668-9  Unknown and absent owners.  The court shall in all cases provide for the protection of the interests of all unknown owners and other owners served under [section] 634-23 or 634-24 who do not appear in the action, in the same manner as far as may be as if they were known and had appeared in the action.  In every case their rights must appear to the satisfaction of the court, but the court may consider them together in the action without considering them separately.  The ascertained share of any such owner in any proceeds of sale shall be paid into court for the owner's benefit, subject to disposition according to law.  If there are any unknown owners of any share or interest, or any other owners served under sections 634-23 or 634-24 who do not appear in the action, the court shall have power in making the general partition to allot and set apart for such share such a portion or portions of the property as the owners thereof would respectively be entitled to receive in the partition were they known and had appeared in the action.  The portion so set apart for such share shall thereafter alone be the subject of ownership by such owner if the owner has been served.  The remaining portions of the property shall be regarded as belonging to the other parties interested therein. [L 1923, c 178, §9; RL 1925, §2769; RL 1935, §4748; RL 1945, §12458; RL 1955, §337-9; HRS §668-9; am L 1972, c 90, §11(m); gen ch 1985]

Case Notes

  Although this section vests the trial court with authority to designate that portion of the property as to those "owners who do not appear in the action" such as defendants, it does not mandate that the trial court exercise that power in every case; where trial court did not specifically partition the common interests of defendants, the fact that it chose not to do so did not mean that in exercising its discretion in subdividing the property into two rather than three lots, it violated this section.  106 H. 501, 107 P.3d 430 (2005).