Kalauli v. Lum, 6089
| Decision Date | 13 July 1976 |
| Docket Number | No. 6089,6089 |
| Citation | 57 Haw. 168,552 P.2d 355 |
| Parties | Deedee KALAULI, a minor, by Patricia L. Kalauli, her natural mother and guardian ad litem, and Patricia L. Kalauli, Plaintiffs-Appellants, v. Betty Ann LUM, Defendant-Appellee. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. No provision exists for appeal in forma pauperis of a civil action and the privision of a transcript at State expense cannot be ordered, although payment of filing fees and the filing of a bond or other security for costs on appeal my be waived by the court.
2. The requirement of filing of a notice of appeal is discharged by a filing which makes a clear assertion of the party's determination to appeal and puts the trial court and the opposing party on notice of the filing party's intent to appeal.
3. A motion for leave to appeal in forma pauperis in a civil action, although denied, may satisfy the requirement of a notice of appeal where filed within the time allowed for taking the appeal.
4. A notice of appeal was timely filed where received by the court clerk within the time allowed for taking the appeal, although the filing fee (HRS § 607-5) and the deposit of costs on appeal (HRS § 607-7) were neither paid nor waived by the court within such time. Joseph A. Ryan, Honolulu (Ryan & Ryan, Honolulu, of counsel), for plaintiffs-appellants.
Kenneth S. Robbins and Harold Chu, Honolulu, for defendant-appellee, for the motion.
Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.
This case is before us on Defendant-Appellee's motion to strike Plaintiff-Appellant's noticde of appeal, which we treat as a motion to dismiss the appeal. The motion presents the question whether a timely notice of appeal was filed.
Following a jury verdict for Appellee, a motion for a new trial was filed and jugement was entered for Appellee pending the motion. The motion for a new trial was denied. Within the period provided by Rule 73(a), H.R.C.P., for filing of a notice of appeal, Appellant filed a motion for leave to proceed on appeal in forma pauperis, to which motion was attached an unsigned form of notice of appeal from the judgment which Appellant asked the trial court to approve. The motion remained unheard for about five months. Upon hearing the motion, the trial court waived the filing fee for the notice of appeal, but denied the motion otherwise. A motion for leave to proceed on appeal in forma pauperis, for waiver of costs of court and bond on appeal and for provision of transcript at State expense was then filed in this court by Appellant. The motion was denied on the authority of Serrao v. Santos, 43 Haw. 208 (1959), by our order entered March 4, 1976, except that the filing fee of this court payable by Appellant on this appeal was waived and Appellant was relieved from the filing of a bond or other security for costs. On March 25, 1976, Appellant filed in the Circuit Court a notice of appeal from the judgment filed January 31, 1975 and from the order denying a new trial filed April 17, 1975.
The timely motion for a new trial postponed, until the date of the order denying the motion, the commencement of the running of the 30-day period fixed by Rule 73(a), H.R.C.P. for filing the notice of appeal. However, the motion for leave to appeal in forma pauperis is not one of the motions enumerated in Rule 73(a) and did not have the effect of again terminating the running of the time for appeal. It follows that a timely notice of appeal was filed in this case only if the motion for leave to appeal in forma pauperis may be regarded as itself constituting the required notice.
While not binding on this court, the decisions of the Federal courts, dealing with similar questions under former Rule 73(a) of the Federal Rules of Civil Procedure are useful precedents. These decisions 'generally hold that the requirement (of timely filing of a notice of appeal) is discharged if the party attempting to appeal makes a clear assertion of his...
To continue reading
Request your trial
-
State v. English, s. 6210
...and, accordingly, we regard interpretations of the latter as highly persuasive in the construction of our own rule. See Kalauli v. Lum, 57 Haw. 168, 552 P.2d 355 (1976); Ellis v. Crockett, 51 Haw. 45, 60-61, 451 P.2d 814, 824 (1969).15 We also note that Rule 48(b) seems only to apply to pos......
-
Prowswood, Inc. v. Mountain Fuel Supply Co.
...was followed: City of Gainesville v. Thomas, Fla., 229 So.2d 833 (1969); Williams v. State, Fla., 324 So.2d 74 (1975); Kalauli v. Lum, 57 Hawaii 168, 552 P.2d 355 (1976).20 28 U.S.C.A. Rule 3(a), Notes of Advisory Committee on Appellate Rules, note to subdivision (e).21 Myers v. Harris, 82 ......
-
Hausknect v. Industrial Com'n
...Finch v. Finch, 468 So.2d 151, 154 (Ala.1985); Mayers v. Bankers Life Co., 421 So.2d 785, 785 (Fla.Dist.Ct.App.1982); Kalauli v. Lum, 57 Haw. 168, 552 P.2d 355, 357 (1976); Avco Fin. Serv. v. Caldwell, 219 Kan. 59, 547 P.2d 756, 760 (1976); United States Nat'l Bank v. Underwriters at Lloyds......
-
Montgomery v. Docter, Docter & Salus
...573 F.Supp. 713, 715-716 (E.D.Tenn.1981); Avco Financial Services v. Caldwell, 219 Kan. 59, 547 P.2d 756 (1976); Kalauli v. Lum, 57 Haw. 168, 552 P.2d 355 (1976); Williams v. State, 324 So.2d 74 (Fla.1975).5 We agree with these Accordingly, we hereby adopt Parissi and hold that notwithstand......