Naki v. Hawaiian Elec. Co.

• Decision Date: 18 September 1967
• Docket Number: No. 4440,4440
• Citation: 431 P.2d 943,50 Haw. 85
• Parties: Thelma NAKI v. HAWAIIAN ELECTRIC CO., Ltd., a Hawaii Corporation.
• Court: Hawaii Supreme Court

Page 943

431 P.2d 943

50 Haw. 85

Thelma NAKI v. HAWAIIAN ELECTRIC CO., Ltd., a Hawaii Corporation.

No. 4440.

Supreme Court of Hawai'i.

Sept. 18, 1967.

Syllabus by the Court

1. The substance of a motion and not its label determines whether it is a motion to amend a finding of fact.

2. An appellate court is under an obligation to ensure it has jurisdiction to hear and determine each case and to dismiss

an appeal on its own motion where it concludes it lacks jurisdiction.

3. Other than as provided by statute, an appellate court is without jurisdiction to hear an appeal before the judgment appealed from becomes final.

4. Where a motion to amend a finding of fact has been seasonably made, and thereby has terminated the running of the time for appeal, an appeal taken before the filing of a written order disposing of the motion must be dismissed as premature.

Richard E. Stifel, Anderson, Wrenn & Jenks, Honolulu, for defendant-appellant, cross-appellee.

Hyman M. Greestein and John E. Parks, Honolulu, for plaintiff-appellee, cross-appellant.

Before RICHARDSON, C. J., and MIZUHA, MARUMOTO, ABE and LEVINSON, JJ.

LEVINSON, Justice.

Sitting without a jury, the trial court held the defendant, Hawaiian Electric Co., Ltd., liable for injuries the plaintiff, Mrs. Thelma Naki, sustained when she came in contact with her copper radio antenna wire, energized as a result of resting on a bare spot on her electric wires. The trial court found that the defendant was negligent because its trouble shooter failed to inspect the plaintiff's premises properly and thereby to discover the dangerous condition which resulted in the plaintiff's injury; because he failed to warn the plaintiff of the dangers which might exist; and because he failed to turn off the power between the utility pole and the plaintiff's house.

At the conclusion of the trial the judge orally announced that he would award the plaintiff $15,130. The judgment filed May 13, 1964, was for only $5,130. On May 20, the plaintiff filed a motion for reconsideration of the amount of damages. Following oral argument on May 25, the court orally denied the motion but has never entered a written order. On June 12, the defendant filed its notice of appeal. On July 10, the plaintiff filed her notice of cross-appeal.

Although the parties have not raised the issue, this court is under an obligation to ensure that it has jurisdiction to hear the determine the case before it, Francone v. McClay, 40 Haw. 475 (1954). Under Rule 73(a) of the Hawaii Rules of Civil Rpocedure, notice of appeal must be filed within thirty days of entry of final judgment. This is applicable to cross-appeals as well. The running of the time for appeal is terminated, however, where a party files one of several types of motions, among which is a motion to amend a finding of fact. The plaintiff's motion of May 20 was such a motion although she did not so denominate it. 'Under the rules, the substance of the pleading controls, not the nomenclature given to the pleading,' Madden v. Madden, 43 Haw. 148, 149-150 (1959). Once such a motion is filed, the time for appeal does not begin to run anew until the entry of an order disposing of the motion, H.R.C.P. 73(a). Finality does not attach to the judgment until a written order on the motion is filed, Marn v. Reynolds, 44 Haw. 655, 361 P.2d 383, rehearing denied, 44 Haw. 684, 361 P.2d 389 (1961).

The court has never entered a written order on the plaintiff's motion for reconsideration and therefore there is no final judgment from which the defendant could appeal or from which the plaintiff could cross-appeal. Both are premature. Filing notice of appeal more than thirty days after entry of final judgment is a jurisdictional defect and can neither be waived by the parties nor disregarded by the court in the exercise of judicial discretion, Ho v. Yee, 42 Haw. 228 (1957). Similarly, filing a notice of appeal before final judgment is entered is a jurisdictional defect unless the appeal is an allowable interlocutory appeal, Madden v. Madden, supra. In that case, the circuit judge entered his 'final order' on December 13. Appellant filed a motion to set aside the final order and for other relief on December 17. Unsure whether that motion tolled the running of the time for appeal, appellant filed a notice of appeal on January 6, making clear in the notice that it was intended as a protective measure. The judge denied the motion on June 24. The appellant filed an 'amended notice of appeal' on July 15 from the final order of December 13 and the denial of the motion. The appellee moved to dismiss the appeal on the ground...