City of Honolulu, Corp. v. Sherretz

• Decision Date: 25 October 1957
• Docket Number: No. 3077.,3077.
• Parties: THE CITY AND COUNTY OF HONOLULU, A MUNICIPAL CORPORATION OF THE TERRITORY OF HAWAII, MARK Y. MURAKAMI, AS A CITIZEN, VOTER AND TAXPAYER OF THE CITY AND COUNTY OF HONOLULU, ON HIS OWN BEHALF AND OTHER CITIZENS, VOTERS AND TAXPAYERS OF THE CITY AND COUNTY OF HONOLULU, AND AS CHAIRMAN OF THE CIVIL SERVICE COMMISSION OF THE DEPARTMENT OF CIVIL SERVICE, CITY AND COUNTY OF HONOLULU, TERRITORY OF HAWAII v. D. RANSOM SHERRETZ.
• Court: Hawaii Supreme Court

42 Haw. 177

THE CITY AND COUNTY OF HONOLULU, A MUNICIPAL CORPORATION OF THE TERRITORY OF HAWAII, MARK Y. MURAKAMI, AS A CITIZEN, VOTER AND TAXPAYER OF THE CITY AND COUNTY OF HONOLULU, ON HIS OWN BEHALF AND OTHER CITIZENS, VOTERS AND TAXPAYERS OF THE CITY AND COUNTY OF HONOLULU, AND AS CHAIRMAN OF THE CIVIL SERVICE COMMISSION OF THE DEPARTMENT OF CIVIL SERVICE, CITY AND COUNTY OF HONOLULU, TERRITORY OF HAWAII

v.D. RANSOM SHERRETZ.

No. 3077.

Supreme Court of the Territory of Hawai‘i.

Argued October 17, 1957.

Decided October 25, 1957.

OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT COURT FIRST CIRCUIT, HON. HARRY R. HEWITT, JUDGE.

Syllabus by the Court

The general rule of common law was that personal actions died with the person. Our statute provides in the case of the death of a sole defendant the plaintiff may make a suggestion of death and require the executor or administrator to appear and defend “where the action survives.”

Unless otherwise specifically provided, statutes providing for the revival of pending actions embrace only actions where the cause of action would survive.

A cause of action for the recovery of a statutory penalty does not survive the death of the wrongdoer, being in its nature personal.

Whether an action survives depends upon the substance of the cause of action, not upon the form of the proceedings to enforce it. Although penalties under statutory proceedings may be enforced by an action of debt, the cause of action itself does not survive since survival depends upon the substance of the cause of action, not on the form of the proceedings to enforce it. Such penalties are in substance designated as ex delicto sounding in tort and therefore come within the common-law rule that all personal actions were extinguished by the death of the tortfeasor.

Walter N. Heen, Deputy City and County Attorney ( K. Tim Yee, Deputy City and County Attorney on the briefs), for appellants.

Robert G. Dodge ( Heen, Kai, Dodge & Lum on the brief) for appellee.

RICE, C. J., STAINBACK AND MARUMOTO, JJ.

OPINION OF THE COURT BY STAINBACK, J.

In this case the City and County of Honolulu, plaintiff-appellant, alleged in its petition dated the 5th day of June, 1953, that the defendant-appellee, D. Ransom Sherretz, as director of personnel of the department of civil service of the City and County of Honolulu did on February 1, 1949, illegally certify for employment by the City and County one Kershner Clark Warford as a civil service worker in good standing; it further alleged that the defendant-appellee as such director had, in direct violation of civil service laws, rules and regulations, approved the said Kershner Clark Warford's salary payments from February 1, 1949 to June 25, 1949, in the amount of $2,232.11, and alleged that defendant-appellee was liable individually to the City and County of Honolulu in the sum of $2,232.11 by virtue of section 6545, Revised Laws of Hawaii 1945, and section 71, Revised Laws of Hawaii 1945, as amended by section 79, Act 301, Session Laws of Hawaii 1951, which make every officer who shall approve, allow or pay any demand on the treasury not authorized by law, personally liable for the amount of demands so illegally approved, allowed or paid, and the plaintiff prayed judgment against the defendant in the sum of $2,232.11, together with interest thereon.

Defendant filed a demurrer to the petition on the ground that it appeared from the petition that the statute of limitations had lapsed, but before there was a hearing and decision on the demurrer to the petition the defendant-appellee, D. Ransom Sherretz, died.

Lucy B. Sherretz was then duly appointed executrix of the last will and testament of the deceased defendant. Thereafter, plaintiff made a motion for an order of substitution of parties and asked to substitute said executrix as party-defendant in place of Mr. Sherretz, basing such demand upon the ground that the claim of the plaintiff was not extinguished by his death.

After argument, the circuit judge ordered the motion denied and the petition herein dismissed. From this order an appeal and notice of appeal were duly filed.

There are two questions involved: (1) whether the statute of limitations had lapsed before the institution of the suit; and (2) whether the cause of action created by section 6545, Revised Laws of Hawaii 1945, and by section 71, Revised Laws of Hawaii 1945, as amended by section 79, Act 301, Session Laws of Hawaii 1951, survived the death of the party-defendant so that the circuit court must upon motion substitute the executrix of the deceased defendant in place of such defendant.

According to the petition the employee, whose hiring gave rise to the cause of action asserted by the City and County, was employed February 1, 1949, and this employment was terminated June 25, 1949, by the civil service commission of the City and County of Honolulu acting with full knowledge of the alleged irregularities and violations which had attended the employee's appointment and payments of salary.

The petition was filed June 5, 1953, almost four years after the termination of employment of Kershner Clark Warford. The demurrer was filed on the ground that the action was not commenced within the time limited by law, namely, the time limited by section 10424, Revised Laws of Hawaii 1945. This section sets forth a two-year statute of limitations on causes of action against public officials.

However, the motion on substituted parties was heard first and its disposition terminated the cause of action and the demurrer was not heard by the court below.

Does the cause of action survive the death of the defendant?

Chapter 204 of the Revised Laws of Hawaii 1945 provides for a substitution of parties upon the death of plaintiffs and defendants. Section 10084 provides in case of the death of a sole defendant or sole surviving defendant, “where the action survives,” the plaintiff may make a suggestion of death and require the executor or administrator to appear and defend. (Emphasis added.)

The question then is whether this is such a cause of action as will survive the death of a sole defendant.

The general rule of common law was that personal actions died with the person. This is particularly true where the damages sustained are personal in nature and do not affect property rights or interest. (1 R. C. L., § 22, p. 28.)

Unless specifically provided otherwise, statutes providing for the revival of pending actions embrace only actions where the cause of action would survive and have no reference to pending actions where the cause of action would not survive.

Such has been the construction of our own court...