Kudlich v. Ciciarelli

• Decision Date: 20 April 1965
• Docket Number: No. 4353,4353
• Citation: 48 Haw. 290,401 P.2d 449
• Parties: Edgar A. KUDLICH v. John G. CICIARELLI and Oahu Insurance Agency, Ltd., a Hawaii Corporation.
• Court: Hawaii Supreme Court

Page 449

401 P.2d 449

48 Haw. 290

Edgar A. KUDLICH v. John G. CICIARELLI and Oahu Insurance Agency, Ltd., a Hawaii Corporation.

No. 4353.

Supreme Court of Hawai'i.

April 20, 1965.

Syllabus by the Court

1. The application of the statutory provision for dismissal of a cause 'remaining untried for a period of six years after it has been placed on the calendar' (R.L.H.1955, § 231-4), is dependent upon the case being placed on the trial or ready calendar and remaining there untried for the prescribed period.

2. Even if regarded as a statute of limitations, the provision contained in R.L.H.1955, § 231-4, for dismissal of a cause remaining untried for a period of six years after it has been placed on the trial calendar, was not affected in any significant sense by H.R.C.P., Rule 40, adopted effective June 14, 1954, providing that under circuit court rules trial calendars could be made up by placing cases thereon on request, or by the subsequent adoption of such a circuit court rule.

V. Thomas Rice, Honolulu, for plaintiff-appellant.

Frank D. Padgett, Honolulu, for defendants-appellees.

Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

PER CURIAM.

This is a civil case having its inception by the filing of the plaintiff's complaint in the First Circuit Court on March 31, 1956. Defendants filed an answer and counterclaim on April 12, 1956. An answer to defendants' counterclaim was filed on May 2, 1956.

On July 20, 1962, pursuant to Rule 13(g) ¹ of the revised Rules of the First Circuit Court, effective July 1, 1960, the clerk of the court notified the parties that the case would be dismissed unless objection was filed within ten days of the receipt of the notice. On July 31, 1962, plaintiff filed a timely objection, together with a Statement of Readiness as required by said Rule 13 in order to place the case on 'the ready trial calendar of civil cases,' so designated by Rule 13(a) of the First Circuit Court rules, as revised. This was followed by a motion to set plaintiff's objection for hearing, filed on September 19, 1962. At the conclusion of argument on the objection, held on September 28, 1962, the court declared that the case would not be dismissed under Rule 13(g) aforesaid but ordered further hearing to determine the applicability of the automatic dismissal provision of R.L.H.1955, § 231-4. After this further hearing, the court ruled that the statute did apply, and entered an order dismissing the case with prejudice on November 1, 1962. The case is now before this court on plaintiff's appeal. The sole question involved is whether R.L.H.1955, § 231-4, operated to effect an automatic dismissal.

The archivist of the First Circuit Court was the only witness called. His testimony was confined to his understanding of the procedural aspects of the First Circuit Court rules and the aforesaid statute pertaining to automatic dismissal. He stated that prior to the 1960 revision of the Circuit Court rules it was his practice to enter an order of dismissal under section 231-4 for the purpose of the record, though the statute did not require it. He entered such order six years after the case was at issue. Upon the filing of all answers the case was at issue and was on the ready calendar, he testified. After the 1960 revision of the Circuit Court rules he did not place any case on the ready calendar, whether or not at issue before 1960, unless a Statement of Readiness was filed. ²

In Arnold v. City and County of Honolulu, 45 Haw. 165, 363 P.2d 968, this court rendered its decision as it pertained to the facts involved in that case without considering the effect of the Hawaii Rules of Civil Procedure or the 1960 revision of the First Circuit Court rules. These matters were not involved in Arnold but must be considered in the instant case.

Upon the record before us we must conclude that this case was placed on the ready calendar on May 2, 1956 when the answer to the counterclaim was filed and the case was at issue. The testimony of the archivist has not been rebutted, either by contrary testimony as to the practice at that time, or by evidence as to what happened in this particular case. However, as will be seen, the practice which the record shows was followed at the time was not mandated by statute to the exclusion of other methods of making up the ready calendar.

R.L.H.1955, § 230-50 ³ on which defendants rely, with first be considered. When considered in the light of its background, this section does not have the significance attributed to it by defendants. This section 230-50 originally was enacted as section 1111 of the Civil Code of 1859 and has remained unamended. In the Civil Code of 1859 it was followed by section 1112, which as amended became R.L.H.1955, § 230-48, relating to demurrers. The latter section, as originally enacted, provided for decision on the demurrer by a 'judge at chambers. ⁴ ' Section 1111 (now § 230-50) in contrast thereto provided for a calendar of cases 'triable in the court in which the action was commenced.' These were cases requiring action of a particular kind. Cf., State ex rel. Kennedy v. District Court, 121 Mont. 320, 194 P.2d 256, 260, 2 A.L.R.2d 1050. The cases which this section had in view were those in which, as stated in section 1106 of the Civil Code of 1859 (later amended and becoming R.L.H.1955, § 230-47), there was 'an issue of fact to be determined by the jury.' However, a jury could be waived as provided by section 1137 of the Civil Code of 1859 (later amended and becoming R.L.H.1955, § 231-6). Thus section 1111 (now § 230-50) provided for the enrollment of cases requiring trial of factual issues, either by the jury or by the court if a jury was waived. It did not have the significance of prescribing that the date the case was at issue was determinative of its standing for trial. On the contrary, section 1161 of the Civil Code of 1859 provided that the courts of record might make their own rules for 'making up calendars of the causes, civil and criminal, coming on for trial in said courts,' and this section remains unchanged as R.L.H.1955, § 231-1. This section 1161 was followed by section 1162, subsequently considerably amended and now R.L.H.1955, § 231-4, the principal section here involved. ⁵ As originally enacted it provided that: 'Causes placed upon the calendar shall be taken up and disposed of in the order in which they stand, unless postponed by the court at the request of the plaintiff or the defendant.' There was no second sentence. This section is considered infra at more length.

Under early rules, no longer in effect, cases were entered on the calendar, not according to the date of filing of the answer placing the case at issue, but instead 'in the order in which the process [was] returnable' (3 Haw., Appendix, Rule XXII). Furthermore, under these early rules, except by leave of court a case did not go no the calendar as soon as it was at issue but only at the next term, unless process was returnable on or before the first day of the term. (Id., Rule XXI.) However, by a 1905 enactment (S.L.1905, c. 8) it was provided, as still stated in R.L.H.1955, § 231-3, that every action should be trial 'at the term of court to which the summons therein is returnable unless such action is continued according to law.' Pursuant to another provision of the same 1905 act, now R.L.H.1955, § 230-27, the summons was returnable 'to the term pending immediately after the expiration of twenty days after the service of summons * * *.' Under these provisions, in the absence of a valid court rule to the contrary, it became the duty of the clerk to place a case on the trial calendar in time for it to be tried at the term to which the summons was returnable, that is, the term pending immediately after the expiration of twenty days after the service of summons, if the case was at issue. However, it is important to note that section 1111 of the Civil Code of 1859 (now § 230-50), as administered for many years, was not determinative of the order of cases in making up the calendar, and that the only restriction which the 1905 act put on the rule-making power of the courts with respect to the making up of the calendar was that the trial of cases should not be delayed merely because a full term of court had not intervened after the summons was returnable.

It was in 1937, by S.L.1937, c. 117, that the second sentence of section 231-4, under which this case was dismissed, was enacted. The 1937 session was the first convened after this court decided, in Silva v. Hind-Clarke Dairy, 33 Haw. 432, that a law action could only be dismissed for want of prosecution in the manner prescribed by the section which is now R.L.H.1955, § 231-5. ⁶ This section, originally section 1163 of the Civil Code of 1859, required that the plaintiff be called by the clerk when the case was reached on the calendar, whereupon he might be declare nonsuit if not present or if he should decline to answer. The situation presented in Silva was as follows: A personal injury action was filed in 1933, together with a companion case in equity seeking to set aside a release. After an equity decree was rendered setting aside the release, defendant answered in the personal injury action, giving notice of intention to rely on the release as well as making general denial. While the equity decree was on appeal and the case remained in that state the newly-appointed judge of the third division, to which the law calendar had been assigned, ordered that notice be given to attorneys by various methods that all cases filed before September 1, 1934 would be dismissed for want of prosecution unless motion to set for trial was filed by a certain date. Thereafter the court entered a 'General Order of Dismissal for Want of Prosecution,' excepting only cases on appeal, cases in which motion to set had been filed, and cases not at issue. Subsequently an order of dismissal was entered in the particular action...