Yee Marn v. Reynolds

• Decision Date: 03 March 1961
• Docket Number: No. 4200,4200
• Citation: Yee Marn v. Reynolds, 361 P.2d 383, 44 Haw. 655 (Haw. 1961)
• Parties: , 44 Haw. 684 James YEE MARN and Hung Ngo Yee Marn, Plaintiffs-Appellees, v. Howdy REYNOLDS, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 383

361 P.2d 383

44 Haw. 655, 44 Haw. 684

James YEE MARN and Hung Ngo Yee Marn, Plaintiffs-Appellees, v.Howdy REYNOLDS, Defendant-Appellant.

No. 4200.

Supreme Court of Hawai'i.

March 3, 1961.

Petition for Rehearing and Motion to Withdraw and Amend

Opinion Denied April 5, 1961.

Syllabus by the Court

1.Unlike the Federal Rules of Civil Procedure, under the Hawaii Rules of Civil Procedure, the filing of the judgment in the office of the clerk constitutes the 'entry' of judgment.H.R.C.P., Rule 58.

2.After entry of judgment, if a timely motion to amend the findings is made and pending, the judgment is suspended and the time for appeal is tolled until the disposition of the motion.H.R.C.P., Rule 73(a).

3.When appellant elects not to include the complete record of all proceedings and evidence in the designation of record on appeal, he is required to serve with his designation a concise statement of the points upon which he intends to rely.H.R.C.P., Rule 75(d).

4.Unless otherwise provided by law, a court document on file cannot be amended without court authority and due notice to the opposite party.An attempted amendment to the designation of record, by noting a deletion of the theretofore designated transcript of evidence only three days before the record is docketed in the appellate court, is improper and prejudicial to appellee, warranting the appellate court to dismiss the appeal.

5.Where the record on appeal does not include the evidence, but appellant contends that the trial court had an erroneous concept of his rights 'flowing from the limited facts it chose to find,'an appellate court cannot determine whether the trial court erred in its findings, and the appeal is therefore subject to dismissal.

J. Frank McLaughlin, Honolulu, for appellant.

Arthur K. Trask, Honolulu, for appellees.

Before TSUKIYAMA, C. J., CASSIDY, WIRTZ, and LEWIS, JJ., and JACK MIZUHA, Circuit Judge, Assigned by Reason of Vacancy.

TSUKIYAMA, Chief Justice.

Appellees' motion to dismis appeal assigns, as first ground for urging dismissal, the alleged unseasonable taking by appellant of his appeal to this court.They contend that appellant's oral motion for rehearing made during a hearing on January 30, 1960, was not of such substance as to toll the time for appeal.The stated ground of the motion for rehearing was that the court's decision was contrary to the law and the evidence and not within the scope of the pleadings.

The record in this case shows that in a suit for money had and received, the trial court, upon completion of the trial on January 30, 1960, orally decided in favor of the plaintiffs-appellees.An oral motion for rehearing was made by defendant-appellant immediately thereafter.On the same day, the court made and filed its written findings of fact and conclusions of law.On February 1, 1960, a judgment in favor of plaintiffs-appellees was filed.

On February 5, 1960, the above mentioned oral motion for rehearing came on for hearing.Preceding the argument, the court orally set aside the judgment for the purpose of hearing the motion.Argument concluded, the court denied the motion and ordered the judgment reinstated.Counsel for defendant-appellant then stated to the court that he would file a motion for a new trial'10 days after refiling of the judgment.'On February 8, 1960, in response to an oral request made by counsel for defendant-appellant at the hearing of February 5, 1960, the court filed its amended findings of fact and conclusions of law.The clerk's file mark on the fly-leaf of the original judgment of February 1, 1960, shows that it was 'refiled' on February 8, 1960.

On February 19, 1960, defendant-appellant served and filed a motion for a new trial setting forth numerous grounds and praying that the judgment entered on 'February 8, 1960,' be set aside and a new trial granted.On the same day, he served and filed a separate motion to amend findings, for further findings and for amended judgment in accord, specifically moving the court to amend the judgment entered on 'February 8, 1960.'On March 4, 1960, plaintiffs-appellees filed their objection to said motions.Counsel for defendant-appellant, on the same day, moved the court for a continuance to March 18, 1960, for the purpose of studying the objection.Without awaiting the court's disposition of the motions, however, on March 7, 1960, defendant-appellant filed a notice of appeal to this court'from the final judgment entered in this action on February 8, 1960.'On March 18, 1960, defendant-appellant's motions afore-mentioned came on for hearing.The court held that it was without jurisdiction to entertain the same on the ground that a notice of appeal to this court had been filed.

Upon such record, it is patent that defendant-appellant's motions of February 19, 1960, were made belatedly, regardless of whether the prescribed 10-day period was computable from February 1, 1960, or February 8, 1960.H.R.C.P., Rule 59(b) and (e).Counsel for defendant-appellant contends that, because the circuit court clerk 'entered' the judgment in the docket on March 7, 1960, the motions were seasonably filed.Such contention, however, is without merit, for Rule 58 of the Hawaii Rules of Civil Procedure, unlike the Federal Rules in this respect, provides in haec verba: 'The filing of the judgment in the office of the clerk constitutes the entry of the judgment; * * *.'The language is crystal-clear.Counsel was obviously not misled, for in all his motions as well as notice of appeal, he constantly referred to the judgment 'entered on February 8, 1960.'Pointing, nevertheless, to the existing variance between the Hawaii Rules and the Federal Rules as to what constitutes 'entry of judgment,'counsel insists that this court'act now to amend Rule 58 by judicial decision.'Suffice it to say that we will not ignore the clear language of Rule 58 and retroactively stamp as timely motions that were filed too late.This court recognizes that the Hawaii Rules of Civil Procedure were patterned after the Federal Rules.Certain changes, however, were advisedly made to harmonize with local practice of long standing.One of them was to define 'entry of judgment' in the language above quoted.

Plaintiffs-appellees challenge the validity of the appeal, contending that the time for appeal should be computed from February 1, 1960, when the judgment was first filed, for the reason that the oral motion for rehearing, the setting aside of the judgment by the trial court on February 5, 1960, and the reinstatement thereof on February 8, 1960, did not toll the running of the time for appeal.They also advance the contention, with which we agree, that the motions of February 19, 1960, were not seasonably made.

A motion for rehearing or a motion for new trial may be made before or after the entry of judgment, provided that, as prescribed in H.R.C.P., Rule 59(b), it is made '* * * not later than 10 days after the entry of the judgment.'6 Moore's Federal Practice, § 59.09(1), p. 3842 (2d ed.).It is well established that such motion, if seasonably made, does toll the time for appeal.The general rule is thus clearly expressed in 3 Am.Jur., Appeal and Error, § 435, pp. 149-150: 'Where the statute provides in general terms that the appeal or proceedings in error shall be instituted within a certain time from the rendition or entry of the judgment or decree, it is the general rule that where a motion for a new trial or rehearing is seasonably made, the time is to be computed from the date of the denial of the motion, and not from the date of the rendition or entry of the judgment or decree, where the motion was necessary to the consideration in the appellate court of the questions involved.The reason for this rule is that the character of finality does not attach to the judgment or decree until the motion has been decided. * * *'Safeway Stores v. Coe, 78 U.S.App.D.C. 19, 136 F.2d 771, 148 A.L.R. 782;Morse v. United States, 270 U.S. 151, 46 S.Ct. 241, 70 L.Ed. 518;Aspen Mining & Smelting Company v. Billings, 150 U.S. 31, 14 S.Ct. 4, 37 L.Ed. 986;6 Moore's Federal Practice, § 59.09(1), p. 3848 (2d ed.);cf., Madden v. Madden, 43 Haw. 148.

In the case at bar, we agree with counsel for plaintiffs-appellees that the oral motion for a rehearing made on January 30, 1960, and heard by the trial court on February 5, 1960, did not toll the time for appeal.After decision rendered, a motion for new trial was in order and should have been filed.H.R.C.P., Rule 59(b).The oral motion for rehearing was of no legal significance.We note, in passing, that there was no occasion or requirement to set aside the judgment in order to entertain defendant-appellant's motion, even if it had been properly made, and also that the physical removal of the judgment from the files was wholly unwarranted.

In examining the record, however, we observe that at the hearing of February 5, 1960, counsel for defendant-appellant requested the court, without objection, to amend its previous findings of fact and conclusions of law, and that in response thereto the court did file its amended findings and conclusions on February 8, 1960.H.R.C.P., Rule 52(b).It was such action which attached the character of finality to the judgment originally entered.The foregoing circumstance clearly differentiates the point here in issue from the questions raised in such cases as Hill v. Hawes, 320 U.S. 520, 64 S.Ct. 334, 88 L.Ed. 283, andDeena Products Co. v. United Brick & Clay Workers of America, 6 Cir., 195 F.2d 612, cited by plaintiffs-appellees.In the present case, the 30-day time limit for appeal commenced to run from the date of the amended findings and conclusions.The notice of appeal having been filed on March 7, 1960, or 28 days after February 8, 1960, the appeal was timely.H.R.C.P., Rule 73(a).Accordingly, the first ground urged by plaintiffs-appellees is without merit.

We consider now the...