Territory by Choy v. Damon
| Decision Date | 13 September 1960 |
| Docket Number | No. 4100,4100 |
| Citation | 356 P.2d 386,44 Haw. 557 |
| Parties | TERRITORY of Hawaii, by Herbert Y. C. CHOY, Its Attorney General, v. Samuel Renny DAMON, Herman Valdemar Von Holt, David Hebden Porteus, and John Edward Russell, Trustees Under the Will and of the Estate of Samuel M. Damon, Deceased, et al. |
| Court | Hawaii Supreme Court |
Syllabus by the Court.
Appeal--moot questions.
This court may not decide moot questions or abstract propositions of law.
Civil Procedure--appeal from judgment on multiple claims--jurisdiction of trial court.
When an appeal is taken from a judgment under H.R.C.P., Rule 54(b) upon one of multiple claims, trial court is divested of jurisdiction with respect to the claim as to which judgment was rendered but it retains jurisdiction over the remainder of the case.
Eminent Domain--abandonment of proceeding.
There is no provision in our statute which requires a condemner to prosecute a condemnation proceeding to final judgment.
Same--same.
When a condemner abandons a condemnation proceeding before final judgment, the only recourse of persons having interest in the land which was sought to be condemned is to proceed under R.L.H.1955, § 8-25, to recover any damages which they might have suffered by reason of the bringing of the proceeding.
Harriet Bouslog (Bouslog & Symonds) Honolulu, for defendants-appellants.
Andrew S. O. Lee and Walter T. Shimoda, Deputy Attys. Gen. (Jack H. Mizuha, Atty. Gen., John P. Russell, Special
Deputy Atty. Gen., and Andrew S. O. Lee, Hawaii, on the brief), for plaintuff-appellee.
Before TSUKIYAMA, C. J., CASSIDY and WIRTZ, JJ., and FRANK A. McKINLEY, Circuit Judge, in place of LEWIS, J., disqualified.
In connection with the expansion of Honolulu International Airport, the Territory of Hawaii sought to acquire parcels of land in Damon Tract adjacent to the airport originally by condemnation.
Appellants were occupants of certain of the parcels proposed to be condemned under quarterly tenancies which were terminable upon written notice of refusal to extend given by the fee simple owners at least thirty days before the expiration of any of the quarterly terms. They owned the buildings standing on the parcels occupied by them and had the right to remove such buildings upon the expiration of their tenancies.
The Territory named the fee simple owners, as well as appellants, as defendants in the original complaint and also in the two amended complaints which it subsequently filed. It filed the first amended complaint before appellants answered the original complaint. Appellants filed their answer to the first amended complaint after the Territory filed its motion to amend the first amended complaint but before the court granted such motion. They at no time filed their answer to the second amended complaint.
By the original complaint, the Territory proposed to condemn the parcels of land described therein in fee simple absolute and all of its improvements, 'excepting those buildings and improvements which certain of the Defendants as lessees, tenants and occupants may have the right and privilege to remove from their respective parcels of land, and appurtenances thereunto belonging.' The first amended complaint differed from the original complaint in that it did not except the mentioned buildings and improvements from the scope of the taking. In the second amended complaint, the Territory proposed the condemnation of the described parcels of land 'together with all improvements thereon and the reversionary interests of the owners thereof, excluding therefrom, however, the interests if any, of lessees, tenants or occupants, and the improvements which said persons may own, and/or have the right to remove.' In that connection, the Territory alleged:
The court granted the motion of the Territory to amend the first amended complaint over appellants' objection. Appellants filed a notice of appeal from the order granting the motion.
While such notice of appeal was outstanding, the Territory filed a motion for judgment on the pleadings against appellants. Appellants in turn filed their return in opposition to the motion and also moved for summary judgment on the issue of liability and for other relief. The court then entered its Order for Judgment on the Pleadings in which it (a) ordered that judgment be entered against appellants finding that they were not entitled to compensation or damages, inasmuch as the pleadings affirmatively showed that no interest of appellants was being condemned; (b) expressly directed the clerk 'to make entry of this final judgment in accordance with Rule 58 of the Hawaii Rules of Civil Procedure,' upon an express determination that there was no just reason for delay; (c) ordered that the judgment be without prejudice to any claim for damages that appellants might have under R.L.H.1955, § 8-25; and (d) denied appellants' motion for summary judgment on the issue of liability.
Aside from filing the court's order for judgment on the pleadings, the clerk did not enter a judgment as directed in the order. Appellants filed a notice of appeal 'from the order granting plaintiff judgment on the pleadings' and 'from the order denying defendant appellants' motion for summary judgment on the issue of liability' and for other relief. Simultaneously with the filing of such notice of appeal, appellants, with the approval of the court, dismissed their appeal from the order granting the motion of the Territory to amend the first amended complaint. At the time of such dismissal, the prior appeal had not been docketed in this court. The later appeal was docketed within the time limited in H.R.C.P., Rule 73(g). Thus, the appeal presently before us is this later appeal from the order for judgment on the pleadings.
Appellants sought a reversal of the order appealed from on the ground that the court erred in entering the order on the premise that their interest was not being condemned. They contended that their interest was in fact being condemned, despite the allegation in the second amended complaint to the contrary, for the reason that when land is condemned, the buildings on the land are included in the scope of the taking, even in a situation where the land and the buildings are separately owned any by agreement the owners of the buildings have the right to remove them, inasmuch as the word 'land,' as used in connection with condemnation, includes the buildings and the inherent nature of land cannot be changed by private agreement. They further contended that the attempt of the Territory to exclude the buildings from the scope of the taking by including the allegation to that effect in the second amended complaint was nugatory, even if it were permissible to condemn the land only and not the buildings thereon, because the instant proceeding was instituted pursuant to a resolution of the Hawaii Aeronautics Commission which requested the attorney general to condemn the 'lands'...
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...390-91 (1996); Richardson v. Sport Shinko (Waikiki Corp.), 76 Hawai`i 494, 500, 880 P.2d 169, 175 (1994) (quoting Territory v. Damon, 44 Haw. 557, 561, 356 P.2d 386, 389 (1960)). Jurisdiction over the appealed case is transferred from the trial court to the supreme court at the time the not......
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76 Hawai'i 494, Richardson v. Sport Shinko (Waikiki Corp.)
...rule is that the filing of a notice of appeal divests the trial court of jurisdiction over the appealed case," Territory v. Damon, 44 Haw. 557, 561, 356 P.2d 386, 389, reh'g denied, 44 Haw. 633, 361 P.2d 63 (1960), cert. denied, 368 U.S. 838, 82 S.Ct. 40, 7 L.Ed.2d 38 (1961), 4 we are conce......
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Wiginton v. Pacific Credit Corp.
...to rule upon the "demand for payment form." Sua sponte we decline to decide this issue because it is moot. Territory by Choy v. Damon, 44 Haw. 557, 356 P.2d 386 (1960), rehearing denied 44 Haw. 633, 361 P.2d 63 (1961), cert. denied 368 U.S. 838, 82 S.Ct. 40, 7 L.Ed.2d 38 (1961). We cannot d......
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Cragin v. Lobbey
...306 S.W.2d 581, 583(3) (Mo.App.1957); Grignon v. Wechselberger, 70 Wash.2d 99, 422 p.2d 25, 26(1) (1966); Territory of Hawaii by Choy v. Damon, 44 Haw. 557, 356 P.2d 386, 390(6) (1960), cert. denied, 368 U.S. 838, 82 S.Ct. 40, 7 L.Ed.2d 38; 4 A C.J.S. Appeal and Error § 608, p. 399. Therefo......