23 Haw. 571 | Haw. | 1917
OPINION OF THE COURT BY
This is a motion by the respondents-appellants to dis
The appeal was docketed in this court on November 18, 1916. The appellants filed their opening briefs on December 2. The time for the filing of the appellee’s brief expired, under the rule of court, on December 12. The appellee died on January 4, 1917, without having filed a brief. He was not obliged to file a brief in this court, but could rest upon .the presumption that the decree of the circuit judge was right. Under the circumstances, therefore, the appeal could have been argued and submitted without an appearance by or on behalf of the appellee at any time after the 12th of December. As a general rule the death of a party after an appeal has been submitted and taken under advisement does not affect the status of the appeal, for the court, upon being advised of the death of the party, may decide the appeal nunc pro tunc as of a day prior to his death. Bell v. Bell, 181 U. S. 175; Danforth v. Danforth, 111 Ill. 236; Powe v. McLeod, 76 Ala. 418. We think that this rule, under the circumstances of this case, may appropriately be applied here. The case has not been argued but the arguments of appellants may be presented now as they might have been in the absence of the appellee during his lifetime. Should the decision of this court upon the merits of the case result in the reversal of the decree and require further proceedings in the court below the respondents may take such steps to secure the revival of the suit or its dismissal as they may be advised. Should the decree be affirmed it will, of course, remain in effect.
The motion is denied.