James v. Kula Development Corp.
| Decision Date | 13 December 1966 |
| Docket Number | No. 4598,4598 |
| Citation | 49 Haw. 508,421 P.2d 296 |
| Parties | , 49 Haw. 519 Frank L. JAMES and Marie A. James v. KULA DEVELOPMENT CORPORATION, William S. Ellis, Jr., Masaru Sumida, Charley Shiraishi and Stanley Unten. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. An order directing the amendment of a judgment so as to provide for nunc pro tunc entry is no more final than any other order which merely directs the entry of judgment.
2. A contention that a provision of a judgment for nunc pro tunc entry was error may be presented on appeal along with other specifications of error in the judgment.
3. An appeal from a denial of a motion which has affected the finality of a judgment is not to be used as a substitute for an appeal from the judgment itself.
Keith J. Steiner, Honolulu (Hughes & Steiner, Honolulu, of counsel), for the motion.
Ralph E. Corey, Honolulu (Clark, Corey, Robinson, Ryan & Ryan, Honolulu, of counsel), and William S. Ellis, Jr., pro se, contra.
Before RICHARDSON, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.
Defendants have appealed to this court from an order entered May 27, 1966, denying their motion filed April 12, 1966, and granting plaintiff's motion of April 21. 1966 for a determination nunc pro tunc giving finality to a summary judgment previously entered in a multiple claim situation where H.R.C.P., Rule 54(b), required such determination if the judgment was to be deemed final. On the same day, May 27, 1966, there was entered an amended summary judgment pursuant to said order. However, there is no question of any mistake in the notice of appeal. Defendants deliberately did not appeal from the judgment. They take the position that they were entitled to appeal from the order. Plaintiffs' motion to dismiss the appeal brings before the court the question whether the appeal taken from the order is interlocutory and hence not authorized.
There was no application for and no order allowing the appeal.
Upon review of defendants' arguments in attempted justification of the taking of the appeal from the order instead of the judgment, we find only two reasons given that merit consideration. First, defendants point to the nunc pro tunc feature of the order. The situation is as follows: Plaintiffs sued on a promissory note. Defendants by their amended answer interposed counterclaims, thus presenting a multiple claim situation. 6 Moore, Federal Practice, § 54.35(1) (2d ed.). Plaintiffs moved for summary judgment on their complaint. On April 1, 1966, the court entered an order that plaintiffs were entitled to judgment on the complaint, and on the same date a 'Summary Judgment,' signed by the Clerk, was entered and notice of entry given. At this point, the court had not made a Rule 54(b) determination, and the parties are agreed that the April 1 papers were interlocutory in nature.
On April 11, 1966 defendants served by mail, and on April 12, 1966 filed, a motion to set aside the order of April 1, 1966, to vacate the summary judgment of that date, and to strike the notice of entry. As seen, this motion was denied by the order of May 27, 1966. On April 21, 1966, plaintiffs moved for a Rule 54(b) determination, expressly requesting that this be made nunc pro tunc. Plaintiffs' motion having been granted, the order appealed from was entered, paragraph 3 of which read as follows:
Defendants contend that they could not appeal from the judgment of May 27, 1966 because of the nunc pro tunc feature of the judgment. They contend that 'appeal therefrom would have to be taken within 30 days of April 1, 1966 * * *.' We do not agree. Defendants could have appealed from the judgment of May 27, 1966, presenting their contention that the nunc pro tunc provision of the judgment was error, as well as their other specifications of error in the judgment. Defendants mistakenly assume that once the judgment was entered nunc pro tunc it was beyond rectification unless they secured a reversal of the order for such entry.
Correctly viewed, the order was no more final than any other order which merely directs the entry of judgment. Cf., Makainai v. Lalakea, 24 Haw. 518; Ung Wo Sang Co. v. Alo, 7 Haw. 673; Mutch v. Holau, 5 Haw. 314. When the nunc pro tunc entry was made the decision to allow the nunc pro tunc provision became final, not before. As in other cases, '* * * until the adjudication the order remains subject to be reversed by the judge * * *.' In re Holt, 20 Haw. 255, 259.
Defendant Ellis further contends that the order of May 27, 1966 was appealable because it denied defendants' motion filed April 12, 1966. That motion had sought to set aside the order an judgment of April 1, 1966 as not made in compliance with Rules 20, 21 and 22 of the Circuit Court, First Circuit, among other grounds. Defendant Ellis seeks to analogize the situation to that obtaining when a motion for relief from a final judgment is made under Rule 60(b). He cites Stafford v. Dickison, 46 Haw. 52, 374 P.2d 665.
The motion filed April 12, 1966 was not a Rule 60(b) motion. That is, it was not a case of relief being sought from a 'final judgment,' within the meaning of 'It is settled law that an appeal does not lie from an order denying a motion for new trial, for rehearing, or to vacate a judgment, and that the appeal should be taken from the judgment itself.'
that rule. 7 Moore, Federal Practice, § 60.20 (2d ed.). As seen, the papers filed on April 1, 1966 were interlocutory in nature. However, defendant Ellis argues that the 'Summary Judgment' purported to be final. While that did not change the true character of the April 1 proceedings, there is a conflict of opinion concerning the appealability of what purports to be a final judgment on which execution might issue, when the supposed judgment really is nothing more than an interlocutory order. Compare Rabekoff v. Lazere & Co., 323 F.2d 865, 866 (2d Cir.) with Biggins v. Oltmer Iron Works, 154 F.2d 217, 217, (7th Cir.); 6 Moore, Federal Practice, § 56.20 (4) at 2765-67, § 56.21(1.-2) at 2783 (2d ed.). Assuming without deciding that an...To continue reading
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Stratis v. Pacific Ins. Co., Ltd.
...when the August 14, 1989 Order was made effective retroactively as of December 30, 1988? At oral argument, citing James v. Kula Dev. Corp., 49 Haw. 508, 421 P.2d 296 (1966), cert. denied, 389 U.S. 864, 88 S.Ct. 125, 19 L.Ed.2d 134 (1967), Defendants' counsel argued that we have appellate ju......