Men v. Ai

• Decision Date: 01 February 1957
• Docket Number: NO. 3048.,3048.
• Citation: Men v. Ai, 41 Haw. 574 (Haw. 1957)
• Parties: YOU DONG MEN, BONG SOON KIM YOU, FRANCIS W. YOU, MINNIE DUNN, ESTRIDGE W. YOU, HENRY W. YOU, MELVIN W. YOU, RICHARD W. YOU AND KATIE YOU v. CHO KYUNG AI.
• Court: Hawaii Supreme Court

41 Haw. 574

YOU DONG MEN, BONG SOON KIM YOU, FRANCIS W. YOU, MINNIE DUNN, ESTRIDGE W. YOU, HENRY W. YOU, MELVIN W. YOU, RICHARD W. YOU AND KATIE YOU

v.CHO KYUNG AI.

NO. 3048.

Supreme Court of the Territory of Hawai‘i.

Argued January 4, 1957.

Decided February 1, 1957.

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

Syllabus by the Court

In an equity suit filed before the effective date of Hawaii Rules of Civil Procedure, in which petitioner failed to take any step to set it down for trial after it had been at issue for more than five years, the court did not abuse its discretion in dismissing the suit for failure to prosecute.

Laches of the petitioner justifying dismissal of suit is chargeable, after his death, to his widow and children who were appointed substituted petitioners and no finding of laches on the part of substituted petitioners is necessary.

Kenneth E. Young(also on the brief) for appellants.

Herbert Y. C. Choy( Fong, Miho, Choy & Chuck on the brief) for appellee.

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

OPINION OF THE COURT BY MARUMOTO, J.

On June 22, 1942, You Dong Men, petitioner, filed a petition for dissolution of partnership and accounting against Cho Kyung Ai, respondent, in the circuit court of the first circuit.Respondent filed her answer on June 29 of the same year.No further proceeding was had until November 16, 1954, when respondent filed suggestion of death of petitioner on February 24, 1948, and moved for substitution of petitioner.Pursuant to such motion, the widow and children of petitioner were substituted as petitioners on the same day.On December 27, 1954, respondent filed a motion for involuntary dismissal of the suit.On January 3, 1955, Edward Y. N. Kim, Esquire, filed his appearance as attorney for substituted petitioners.On January 8, 1955, Edward Y. N. Kim withdrew, and Kenneth E. Young, Esquire, entered his appearance, as such attorney.The court below heard the motion for involuntary dismissal on January 31, 1955, and rendered its decision on June 6, 1955.It ruled that the suit should be dismissed with prejudice on the following grounds: (a) failure to prosecute under Rule 41 (b) of Hawaii Rules of Civil Procedure, and (b) laches on the part of original petitioner, his personal representatives, widow and heirs.Order of dismissal with prejudice was filed on June 9, 1955.This is an appeal by substituted petitioners from such order.

The instant suit was pending when the Hawaii Rules of Civil Procedure took effect.The order adopting and promulgating such rules provides: “That said rules shall take effect on June 14th, 1954 and shall govern actions and proceedings of a civil nature in the circuit courts of the Territory brought on or after said date except as otherwise provided in said rules, and also all further proceedings in such actions then pending except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice in which event the former procedure applies.”Thus, the court could have considered the motion for involuntary dismissal under the new rules, or it could have considered such motion under the old rule applicable to suits in equity.In either case, the granting or denial of such motion was discretionary with the court and the order would not be disturbed on appeal, except for abuse of discretion.

In the new rules the procedure for dismissal for failure to prosecute is set forth in rule 41 (b), which reads: “For failure of the plaintiff to prosecute * * *, a defendant may move for dismissal of an action or of any claim against him.”This rule is identical with the Federal rule bearing the same section number.In his discussion of the Federal rules, Professor Moore states that “Rule 41 (b) clearly places dismissal for failure to...