Kealoha v. Tanaka

• Decision Date: 17 July 1958
• Docket Number: No. 4075.,4075.
• Citation: 42 Haw. 630
• Parties: MABEL CHANG KEALOHA AND JACQULYN ARRUDA, A MINOR, BY HER SUBSTITUTED NEXT FRIEND AND GUARDIAN AD LITEM, DONALD ARRUDA v. RAYMOND M. TANAKA.
• Court: Hawaii Supreme Court

42 Haw. 630

MABEL CHANG KEALOHA AND JACQULYN ARRUDA, A MINOR, BY HER SUBSTITUTED NEXT FRIEND AND GUARDIAN AD LITEM, DONALD ARRUDA

v.RAYMOND M. TANAKA.

No. 4075.

Supreme Court of the Territory of Hawai‘i.

Argued June 30 & July 8, 1958.

Decided July 17, 1958.

MOTION TO REMAND AFTER CIRCUIT COURT HAS INDICATED THAT IT WILL GRANT MOTION FOR NEW TRIAL.

Syllabus by the Court

Where a party seeks a new trial of a case pending in this court on appeal, the proper procedure is for the party to file in this court a motion for leave to move in the circuit court for new trial and for remand of the case to that court.

Where a party seeks a new trial of a case pending in this court on appeal, the case will be remanded to the circuit court on proper motion upon a showing that makes it reasonably apparent that, with the facts before it, the trial court would be disposed to grant a new trial.

In this proceeding, where a motion is filed in this court for remand of the case to the circuit court for entry of an order granting new trial, after a motion for new trial has been heard by the circuit court and the circuit court has indicated that it would grant a new trial, and where there is good cause for remand, the motion is treated as a motion for leave to file a motion for new trial in the circuit court and for remand of the case to the circuit court.

A motion for new trial on the ground of newly discovered evidence of misconduct of the jury and the court filed after the expiration of the time for new trial allowed under rule 59 (b) of Hawaii Rules of Civil Procedure may be treated as a motion for relief from judgment under rule 60 (b) (6). For such relief, the application must be substantiated by adequate proof and its exceptional character must be clearly established to the satisfaction of the circuit court.Kenneth E. Young for plaintiffs–appellants, for the motion.

Robertson, Castle & Anthony ( J. Garner Anthony, Richard C. Knight and Frank D. Padgett) for defendant–appellee, contra.

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

Per Curiam.

This matter is before us on plaintiffs' motion for remand of the case, now pending in this court on appeal, to the circuit court in order that the latter may enter an order granting a new trial. The sole question for our determination in this proceeding is the proper procedure to be followed where a party seeks a new trial of a case which is here on appeal.

Following are the facts pertinent to the proceeding: On January 10, 1958, the circuit court entered a judgment in favor of the defendant and against the plaintiffs, pursuant to a verdict of the jury, in a tort action for damages for wrongful death. On January 30, the plaintiffs appealed to this court from the judgment. On May 23, the plaintiffs filed a motion for new trial in the circuit court on the ground of “newly discovered evidence of misconduct of the jury and the Court.” The circuit court held a hearing on the motion, at which the plaintiffs adduced evidence showing that, after the case was submitted to the jury and the jury deliberated for about one hour and thirty minutes, the jury proceeded to Halekulani Hotel for dinner, pursuant to an arrangement made by the bailiff upon consultation with the court; that the court gave no instruction to the jury concerning its conduct during dinnertime; that neither counsel was present in the courthouse when the jury left for dinner; that the jury went to the hotel in three groups on private automobiles; that the bailiff accompanied one group; that a court clerk, who had not taken a bailiff's oath, accompanied another group; that no court officer accompanied the third group; that upon reaching the hotel, the jurors watched an outdoor entertainment for about thirty minutes before going to the dining room; that while the jurors were watching the entertainment, the bailiff went to the outdoor bar to instruct a waitress to take orders for “drinks”; that the bailiff saw every juror holding a glass after the waitress took the orders; that the bill for the drinks served before the dinner was paid by the court fiscal officer together with the bill for dinner; that at the dinner table some jurors ordered alcoholic drinks at their own expense; that about two hours elapsed between the time that the jury left the courthouse for dinner and returned thereto after the dinner; and that the jury reached its verdict within about thirty minutes after returning to the courthouse. At the conclusion of the hearing the court indicated that it would grant the motion for new trial.

In filing the motion for new trial in the circuit court and the motion for remand in this court after the circuit court indicated that it would grant the motion for new trial, the plaintiffs followed the procedure prescribed in Smith v. Pollin, 194 F. (2d) 349.

The procedure in Smith v. Pollin is based on the procedure in criminal cases under rule 33 of the Federal Rules of Criminal Procedure. (Rakes v. United States, 163 F. [2d] 771;United States v. Minkoff, 181 F. [2d] 538; Metcalf v. United States, 195 F. [2d] 213) There is no rule equivalent to rule 33 of the Federal criminal rules in the Federal Rules of Civil Procedure or in our rules.

Smith v. Pollin does not make it clear whether it is incumbent upon the appellate court to remand every case in which the trial court has indicated that it would grant a new trial.

The duty of the appellate court on a motion to remand under the Federal criminal rules does not appear to be ministerial. In Rakes v. United States, supra, the court stated: “Now that the procedure has been availed of and the District Judge has heard the motion and found that it should be granted, the orderly course is to remand the cause in order that the motion may be granted unless we are prepared to say that there was no reasonable basis for the motion and that Judge Hutcheson abused his discretion in the action taken by him.”

Our examination of the Federal reports shows that, after the promulgation of the Federal Rules of Civil Procedure and before Smith v. Pollin, the question that confronts us in this proceeding was given consideration in the following cases: Isgrig v. United States, 109 F. (2d) 131; Boro Hall Corporation v. General Motors Corporation, 130 F. (2d) 196; Checker Cab Co., Inc. v. Markland, 142 F. (2d) 95; and Baruch v. Beech Aircraft Corporation, 172 F. (2d) 445. In none of these cases was there a consideration of a motion for new trial by the trial court before remand. In every case, the appellate court stated that there should not be a remand in the absence of a showing that the trial court would be justified in granting a new trial.

In Isgrig v. United States, the appellants filed in the trial court a petition for rehearing on the ground of newly discovered evidence and at the same time moved in the appellate court for a remand of the case to allow the trial court to pass on the petition. The court stated: “A motion for new trial on the ground of newly discovered evidence may be made within the time allowed for appeal. Rule 59 (b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. If appeal has been taken in the meantime, the case is in the appellate court; and the appropriate procedure is motion in that court to remand the case to the lower court so that the motion for new trial may be passed on. The case will be remanded, however, only if showing is made to the appellate court that the lower court would be justified in granting the new trial.”

Boro Hall Corporation v. General Motors Corporation involved a petition for rehearing which the appellate court held to be irregular but which it considered “as upon an application for leave to file a petition in the District Court to reopen the case and to remand the cause to that court for further proceedings.” The court, in denying the petition, stated: “Such an application should be entertained only if there is newly discovered evidence which seems prima facie to cast serious doubt upon the decision rendered by the majority of this court heretofore. We do not find this to be the case.” This statement was made by the same court that decided Harper Bros. v. Klaw, 272 Fed. 894, cited in Smith v. Pollin as being in accordance with the court's position in that case.

In Checker Cab Co., Inc. v. Markland, the decision depended on the timeliness of the motion for new trial and the question of procedure was not directly involved. But the court made the following statement with regard to procedure: “Even when such a motion is timely, but after notice of appeal, the appellate court must inquire whether, upon the showing made, the trial court would be justified in granting a new trial. Otherwise, it would be a futile gesture to remand the case, and would cause an improper delay in its final disposition.” (Emphasis supplied) This statement is completely ignored in Smith v. Pollin, although it was made by the same court.

In Baruch v. Beech Aircraft Corporation, the question presented to the appellate court was identical with the question in the instant proceeding. The court ruled on the question as follows: “The appeal has been perfected, the record filed, and we should not remand it, without decision on the merits, unless we can say that the variance or irregularity in the testimony is such as to make it reasonably apparent that, with the facts before it, the trial court would be disposed to grant a new trial.”

After Smith v. Pollin, the question has been considered in Zig Zag Spring Co. v. Comfort Spring Corp., 200 F. (2d) 901, and Ferrell v. Trailmobile, Inc., 223 F. (2d) 697. The former case followed Baruch v. Beech Aircraft Corporation, and the latter followed Smith v. Pollin.

We think that in the interest of orderly procedure there should be a remand of the case upon a showing of good cause before a motion for new trial is considered by the circuit court for two reasons.

The first reason is that when a case is appealed to this court...