Keating v. Keating

• Decision Date: 12 November 1958
• Docket Number: NO. 4032.,4032.
• Citation: 43 Haw. 51
• Court: Hawaii Supreme Court
• Parties: WILLETHA KEATING v. JOHN KEATING.

43 Haw. 51

WILLETHA KEATING

v.JOHN KEATING.

NO. 4032.

Supreme Court of the Territory of Hawai‘i.

Argued November 5, 1958.

Decided November 12, 1958.

OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT COURT FIRST CIRCUIT, HON. FRANK A. MCKINLEY, JUDGE.

Syllabus by the Court

An attorney who is aggrieved by an order substituting another attorney in his stead may appeal from such order.

A party may not complain of absence of written motion if he has been accorded opportunity to present his case; nor may he complain of absence of formal notice if he has appeared and actively participated in the presentation of his case.

There is no absolute requirement that approval of substitution of attorney be conditioned on the payment of fee for services already rendered. The matter rests within the reasonable discretion of the court.

John E. Parks (also on the brief), appellant.

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

Per Curiam.

Appellant, John E. Parks, was the original attorney of record for Willetha Keating, libellant, in her divorce action against John Keating, libellee. In addition to appellant, libellant had retained George T. Davis, a member of the California bar, as her attorney.

Appellant and Davis worked together in negotiating a property settlement agreement for libellant. The agreement, as finally negotiated, provided for the payment of $2,500 by libellee to appellant for his fee as libellant's attorney. That sum included the sum of $750 that appellant had previously received from libellee, pendente lite, for services and costs. Appellant claimed an additional fee of $3,410 from libellant. There was no definite agreement between appellant and libellant for the payment of such additional fee.

On the day that the libel for divorce was set for hearing, appellant asked libellant to sign a promissory note for the additional fee. Upon libellant's refusal to sign the note, appellant caused the case to be taken off the circuit judge's calendar for that day. Thereupon, libellant retained John F. Alexander as her attorney in appellant's stead. After a hearing, the circuit judge approved the appearance of Alexander as libellant's attorney of record and permitted Davis to be associated with Alexander. Davis then presented evidence to the circuit judge on the libel for divorce, and the judge entered a decree which, in addition to dissolving the marriage relationship between libellant and libellee, approved the property settlement agreement executed by them.

The case is before us on appellant's appeal from the decree of divorce and the order substituting Alexander and Davis as libellant's attorneys in appellant's stead.

In our consideration of the appeal, the first question that occurs to us is appellant's standing in this court. Under H.R.C.P., Rule 73 (a), only a party may appeal. Appellant was not an original party in the divorce action. However, Federal appellate courts uniformly hold that an attorney who is aggrieved by an order substituting another attorney in his stead may appeal from such order. (The Flush, 277 Fed. 25,Doggett v. Deauville Corporation, 148 F. [2d] 881; Borgmeier v. Stone, 233 F. [2d] 818.) We agree with the foregoing authorities. Appellant is properly before this court on appeal.

Appellant complains that the order of substitution was entered without the filing of a written motion for that purpose and without notice to him of the filing of the motion. A party may not complain about the absence of a written motion if he has been accorded ample opportunity to present his case. Nor may he complain of the absence of formal notice if he has appeared and actively participated in the presentation of his case. (Benezet v....