YUKIE SANDRA SCOTT v. DANIEL S. C. LIU, INDIVIDUALLY AND AS CHIEF OF POLICE OF THE CITY AND COUNTY OF HONOLULU, JOHN DIXON, MICHAEL H. S. CHUN, THOMAS J. CARLOS, HOLAIKU L. DRAKE AND ABRAHAM AIONA
No. 4316.
Supreme Court of Hawaii
NOVEMBER 30, 1962.
46 Haw. 221
TSUKIYAMA, C.J., CASSIDY, WIRTZ, LEWIS AND MIZUHA, JJ.
This is а motion to dismiss an appeal. The record shows that after trial before a jury, judgment was en-
On January 5, 1962 defendants-appellants filed a motion headed and reading as follows:
“MOTION TO SET ASIDE ORDER
“Come now DANIEL S. C. LIU, individually and as Chief of Police of the City and County of Honolulu, JOHN DIXON, MICHAEL H. S. CHUN, THOMAS J. CARLOS, HOLAIKU L. DRAKE and ABRAHAM AIONA, by their attorneys, STANLEY LING, Corporation Counsel, and LINCOLN J. ISHIDA, Deputy Corporation Counsel, City and County of Honolulu, and move this Honorable Court to set aside the order entered in the above entitled cause on December 29, 1961 and request this Honorable Court to enter a Written Decision on the Motions for New Trial filed by the Defendants herein.”
The motion of January 5, 1962 was deniеd by an order filed on March 19, 1962. On April 17, 1962 defendants-appellants filed their notice of appeal. It will be seen that they computed their time for appeal from the entry of the order of March 19, 1962.
“* * * The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules
hereinafter enumerated, and the full time for appeal fixed in this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: granting or denying a motion for judgment under Rule 50 (b); or granting or denying a motion under Rule 52 (b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a mоtion under Rule 59 to alter or amend the judgment; or denying a motion for a new trial under Rule 59.”
Movant contends that the motion of January 5, 1962 was not a motion of the type contemplated by the rules enumerated in
In any event,
Defendants-appellants further contend the appeal was timely because the motion of January 5, 1962 was filed within ten days of the denial of the motion for new trial, citing Terrasi v. South Atlantic Lines, 226 F.2d 823 (2d Cir.). In that case an oral motion for new trial was denied on January 20, and on January 21, which also was the day of entry of judgment, a written motion for reargument of the motion for new trial was filed. Promptly on denial of this latter motion the appeal was taken and was held timely. The case is distinguishable on its facts. Here the ten-day period did not run anew from December 29, 1961; there is no provision in the rules for tolling the time for appeal by a motion filed within ten days after a judgment becomes final. The difference between entry and finality of a judgment was pointed out in Marn v. Reynolds, 44 Haw. 655, 658, 361 P.2d 383, 386, rehearing denied, 44 Haw. 684. When there is a timely motion for new trial or the like the judgment does not take on finality
“* * * While this motion was made within ten days of the denial of the first motion, it was not made within ten days after the entry of judgment, as the Rules require. The ten-day timе period within which the making of a motion for reconsideration automatically stops the running of the time in which to note an appeal from the judgment is a time period which cannot be extended, except as allowed by the Rules under circumstances here inapplicable. Fed.R.Civ.P. 6(b), 73(a). There is nothing in the Rules to suggest that a second motion for reconsideration, made after the denial of a timely initial motion, has the effect of again terminating the running of the time to appeal from the judgment. Such a construction of the Rules would permit dilatory tactics destructive of the finality of the judgment. * * *”
Hence we hold that pursuant to
“Entry” of the order denying the motion for new trial took place when that order was filed. As stated in State v. Bulgo, 45 Haw. 501, 503, 370 P.2d 480, 482, “entry” signifies something more formal than mere oral rendition
It is argued that the hearing of the motion of January 5, 1962 on January 17, 1962 had the effect of reinstating the timely motion of September 1, 1961, under the rule stated in Kelly v. Pennsylvania R.R., 228 F.2d 727 (3d Cir.). In Kelly, the motion for new trial originally was dismissed on the theory it had been abandoned; a petition for reargument promptly disputed the abandonment of the motion and was granted. It will be noted that in Kelly the motion for new trial had not been decided on its merits and reargument was granted in order to hear the merits. It is by no means settled that by reconsidering a motion once decided, a court can reinstate the motion with all its original effect under
The minutes оf the January 17, 1962 hearing show that the hearing lasted six minutes. This again shows that no “good faith request” for a “second look” was made or intended. The minutes conclude:
“* * * the Court stated that there could be a short decision on the constitution and arrest. The Court took the matter under advisement.”
It by no means appears that the court intended to set aside its prior order denying a new trial. However, if defendants-appellants were of the view that the trial court could, and intended to, vacate the denial order and reinstate the motion for new trial with its original effect under
In the present case it was not until the time for appeal had expired that any further paper was filed by or under the authority of the court. When filed on March 19, 1962 it recited that the court had intended to write a detailed decision but lacked time to do sо, then “ordered that the
Furthermore, appellants failed to take a precautionary appeal within the allotted time—thirty days—computed from the entry of the denial order. Cf., Madden v. Madden, 43 Haw. 148. Had they considered the point they certainly would have realized that it was extremely doubtful that the time for appeal could be extended beyond this thirty days. They did nothing to safeguard their right of appeal.
The appeal was untimely and this court is without jurisdiction to hear it. Motion granted.
Harriet Bouslog (John E. Ahrens and Bouslog & Symonds of counsel) for the movant, plaintiff-appellee.
Lincoln J. Ishida, Deputy Corporation Counsel, City and County of Honolulu (Stanley Ling, Corporation Counsel, with him on the memorandum) for defendants-appellants.
DISSENTING OPINION OF TSUKIYAMA, C.J., IN WHICH CASSIDY, J., JOINS.
That the provisions of Rule 73, Hawaii Rules of Civil Procedure which govern the time within which an appeal must be taken to the supreme court are mandatory and jurisdictional, there can be no dispute in the wake of the rulings of this court on the subject.
The majority of this court, on the basis of its view of the facts here involved, dismisses the appeal as taken untimely under the rule. With deference, I do not concur. In essence, my conclusion is founded upon what appears
The motion for a new trial timely filed on September 1, 1961, by appellants did suspend the running of the 30-day period for appeal.
On January 5, 1962, when the 30-day period for appeal had run only seven days, appellants filed a written motion tо set aside the order with a request that the court enter a written decision on the motion for a new trial. The court entertained and heard the motion on January 17, 1962, and at the conclusion thereof, notwithstanding defendants’ concession that the court was not perforce required to file a written decision, again took the matter under advisement stаting that “there could be a short decision on the constitution and arrest.” It is to be further noted that when the motion to set aside was heard, appellants’ period for appeal computed from December 29, 1961, had twelve more days remaining before expiration. Under the circumstances, defendants were fully warranted in believing that, while awaiting а written decision, the filing of a notice of appeal would probably be deemed abortive and hence invalid.
On March 19, 1962, the trial court entered an order
Within 30 days from this order, appellants filed their notice of appeal. Appellants contend that they believed the order of March 19, 1962, was “the final judgment” and computed the time for appeal from thаt date. It is readily discernible, when viewed in the light of the foregoing sequence of procedural events, that appellants were confused and actually misled into believing that the trial court‘s actions and statements constituted a reinstatement or revival of the motion for new trial or a suspension of the finality of its previous order of December 29, 1961. Certainly, they were justified in assuming from the statement made by the court at the hearing on January 17, 1962, that the court did not consider or intend that it had already taken its final action in the matter. Cf., Carnes v. United States, 279 F.2d 378 (10th Cir.).
There is no quarrel with the general concept that counsel should be constantly alert and when confronted with procedural technicalities, take appropriate precautionary steps. Loose and careless practice in clear disregard of procedural rules is not condoned. In the instant case, however, I find it difficult to turn askance from the extraordinary circumstances revealed by the record.
Nothing appears here to indicate that appellants were lackadaisical, negligent, or dilatory. On the contrary, the pleadings promptly filed by them in the pursuit of their cause not only demonstrated their diligence but evinced that they were laboring under a misapprehension result-
It is my view that the reasoning set forth by the court in Kelly v. Pennsylvania R.R., 228 F.2d 727 (3rd Cir.), represents a sound and logical conclusion which is applicable to the case at bar. There the trial court dismissed the defendant‘s motion for a new trial. Two days later the defendant filed a petition for reargument of its motion for a new trial. Well within the time prescribed for appeal, the court heard and granted the petition for reargument. Holding that thе judgment lacked appealable finality pending the determination of the reinstated motion for a new trial, the appellate court said, at page 730:
“* * * But if the court directs reargument of the motion for a new trial and thereby reinstates it within the appeal period the revived pendency of the original motion operates again tо terminate the running of the time for appeal. In such case the appeal time will commence to run again and will be computed from the date of entry of the court‘s subsequent order denying the motion, if it is denied. Meanwhile the judgment which is the subject of the pending motion for a new trial must be regarded as lacking appealable finality.”
Also pertinent is the language of the court in Sleek v. J. C. Penney Company, 292 F.2d 256 (3rd Cir.), where, in respect to an application under
Not having reached it, I am not concerned with the merit of the appeal. My concern here pertains to the legal effect of the trial court‘s possibly inadvertent but obviously misleading actions which protracted the proceedings before it, thereby causing an inevitable delay in the filing of a notice of appeal. Incidentally, while it is true that there is no exacting requirement that a trial court render a written decision in ruling on a motion for new trial, it does not follow that all such motions may, with propriety, be disposed of without any elaboration, particularly when, as here, the court itself has proposed to render a written decision. (See Rule 21, First Circuit Court Rules; also see 66 C.J.S., New Trial, § 210, p. 533.) Furthermore, in a case like the one here where the motion raised the issue of the trial court‘s holding unconstitutional certain statutory provisions, I think it would have been desirable and could, almost as a matter of course, have been reasonably expected that the court would render a written decision at least on the constitutional issue.
Believing that the foregoing circumstances warrant my conclusion as being a justified aрplication of the rules to accord with the particular and unusual facts presented by the record in this case, I would deny the motion to dismiss.