Scott v. Liu , 46 Haw. 221 ( 1962 )

OPINION OE THE COURT BY

LEWIS, J.

This is a motion to dismiss an appeal. The record shows that after trial before a jury, judgment was entered on August 30, 1961. On September 1, 1961 defendants-appellants served and filed their motion for new trial. This was heard on November 8, 1961, at which time as set forth in the minutes: “The Court took the matter under advisement and a written decision on the motion for new trial will be filed.” However, on December 29, 1961, without the rendition of a written decision,¹ the court “ordered that the motions for a new trial heretofore filed herein are hereby denied.” This order was filed the same day, December 29, 1961.

On January 5, 1962 defendants-appellants filed a motion headed and reading as follows:

“MOTION TO SET ASIDE ORDER

“Come now DANIEL S. C. LIU, individually and as Chief of Police of the City and County of Honolulu, JOHN DIXON, MICHAEL H. S. CHUN, THOMAS J. CARLOS, HOLAIKU L. DRAKE and ABRAHAM AIONA, by their attorneys, STANLEY LING, Corporation Counsel, and LINCOLN J. ISHIDA, Deputy Corporation Counsel, City and County of Honolulu, and move this Honorable Court to set aside the order entered in the above entitled cause on December 29, 1961 and request this Honorable Court to enter a Written Decision on the Motions for New Trial filed by the Defendants herein.”

The motion of January 5,1962 was denied by an order filed on March 19, 1962. On April 17, 1962 defendants-appellants filed their notice of appeal. It will be seen that they computed their time for appeal from the entry of the order of March 19, 1962.

H.R.C.P., Rule 73(a). provides:

“* * * The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: granting or denying a motion for judgment under Rule 50(b); or granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under Rule 59 to alter or amend the judgment; or denying a motion for a new trial under Rule 59.”

Movant contends that the motion of January 5, 1962 was not a motion of the type contemplated by the rules enumerated in Rule 73(a). We find this contention well taken. Clearly, Rules 50(b) and 52(b) were not involved. Nor was the motion of January 5, 1962 made under Rule 59. It did not seek a new trial or reconsideration of the order denying a new trial. This is confirmed by the minutes of January 17, 1962, at which time the motion was presented and counsel for defendants-appellants “asked that the Court prepare a written decision denying motions for a new trial.” The motion was without legal significance in computing the time for appeal and must be ignored. See Cox v. Tanaka, 46 Haw. 15, 374 P.2d 1.

In any event, Rule 73(a) requires a timely motion to toll the running of the time for appeal. A motion under Rule 59 is required to be served “not later than ten days after the entry of the judgment.” As provided in Rule 58 “the filing of the judgment in the office of the clerk constitutes the entry of the judgment * * *.” Therefore, the ten days allowed for a motion that would toll the running of the time for appeal ran from August 30, 1961. Only the motion of September 1, 1961 was filed within the allowed time. Thus the motion of January 5, 1962 was not even timely. Marten v. Hess, 176 F.2d 834 (6th Cir.); Randolph v. Randolph, 198 F.2d 956 (D.C. Cir.); Yates v. Behrend, 280 F.2d 64 (D.C. Cir.). Authorities cited by defendants-appellants are inapplicable, having been decided under the bankruptcy law (Ribaudo v. Citizens Nat’l Bank, 261 F.2d 929 (5th Cir.) ),² or under Rule 60(b) (Sleek v. J. C. Penney Co., 292 F.2d 256 (3d Cir.), Hicklin v. Edwards, 222 F.2d 921 (8th Cir.) ).³

Defendants-appellants further contend the appeal was timely because the motion of January 5, 1962 was filed within ten days of the denial of the motion for new trial, citing Terrasi v. South Atlantic Lines, 226 F.2d 823 (2d Cir.). In that case an oral motion for new trial was denied on January 20, and on January 21, which also was the day of entry of judgment, a written motion for reargument of the motion for new trial was filed. Promptly on denial of this latter motion the appeal was taken and was held timely. The case is distinguishable on its facts. Here the ten-day period did not run anew from December 29, 1961; there is no provision in the rules for tolling the time for appeal by a motion filed within ten days after a judgment becomes final. The difference between entry and finality of a judgment was pointed out in Marn v. Reynolds, 44 Haw. 655, 658, 361 P.2d 383, 386, rehearing denied, 44 Haw. 684. When there is a timely motion for new tidal or the like the judgment does not take on finality until the motion has been decided. That was on December 29, 1961. But at that point the running oí the time for appeal could not be tolled by a further motion; the time for a motion that would accomplish that had to be computed from entry of the judgment and had long since passed. Pursuant to the express provisions of Buie 6(b), the time for the motion could not be extended. Yates v. Behrend, supra, 280 F.2d at 65, very well explains the matter:

“* * * While this motion was made within ten days of the denial of the first motion, it was not made within ten days after the entry of judgment, as the Buies require. The ten-day time period within which the making of a motion for reconsideration automatically stops the running of the time in which to note an appeal from the judgment is a time period which cannot be extended, except as allowed by the Buies under circumstances here inapplicable. Fed.B.Civ.P. 6(b), 73(a). There is nothing in the Buies to suggest that a second motion for reconsideration, made after the denial of a timely initial motion, has the effect of again terminating the running of the time to appeal from the judgment. Such a construction of the Buies would permit dilatory tactics destructive of the finality of the judgment. * * *”

Hence we hold that pursuant to Buie 73(a), the judgment became final and appealable upon entry of the order denying the motion for new trial, the time for appeal then commenced running anew, and the time allowed for appeal was thirty days from the entry of the order denying the motion for new trial.

“Entry” of the order denying the motion for new trial took place when that order was filed. As stated in State v. Bulgo, 45 Haw. 501, 503, 370 P.2d 480, 482, “entry” signifies something more formal than mere oral rendition of an order or ruling of the court, and contemplates a filed written order. That was on December 29, 1961. The time for appeal expired January 29, 1962, January 28 being a Sunday.

It is argued that the hearing of the motion of January 5, 1962 on January 17, 1962 had the effect of reinstating the timely motion of September 1, 1961, under the rule stated in Kelly v. Pennsylvania R.R., 228 F.2d 727 (3d Cir.). In Kelly, the motion for new trial originally was dismissed on the theory it had been abandoned; a petition for reargument promptly disputed the abandonment of the motion and was granted. It will be noted that in Kelly the motion for new trial had not been decided on its merits and reargument was granted in order to hear the merits. It is by no means settled that by reconsidering a motion once decided, a court can reinstate the motion with all its original effect under Rule 73(a). In any event, nothing of the kind was involved here. The court did not “consider it [the motion] on its merits as a good faith request that the Court take a second look and reverse itself at least in part,” as required to extend the time for appeal even under the more liberal procedure applicable in bankruptcy cases. Ribaudo v. Citizens Nat’l Bank, supra, 261 F.2d at 932. In effect, the contention is that the court could extend the time for appeal while considering whether it would write a decision. However, Rule 6(b) expressly provides that the court cannot extend the time for appeal except as provided in Rule 73(a). Under Rule 73(a) the only permissible ground for extension of the time for appeal is failure to learn of the entry of the judgment.

The minutes of the January 17, 1962 hearing show that the hearing lasted six minutes. This again shows that no “good faith request” for a “second look” was made or intended. The minutes conclude:

“* * * the Court stated that there could he a short decision on the constitution and arrest. The Court took the matter under advisement.”

It by no means appears that the court intended to set aside its prior order denying a new trial. However, if def endants-appellants were of the view that the trial court could, and intended to, vacate the denial order and reinstate the motion for new trial with its original effect under Eule 73(a), they at least should have obtained and filed a written order setting aside the denial order on file, pursuant to which the time for appeal was running. This court repeatedly has held that a mere oral ruling is a nullity in computing the time for appeal. Estate of Walters, 10 Haw. 25; Kahai v. Kuhia, 11 Haw. 3; Jelinx v. Jelinx, 28 Haw. 403; State v. Bulgo, supra, 45 Haw. 501, 370 P.2d 480. True, the cited cases presented the question whether the time for appeal ran from an oral ruling, while this case presents the converse question whether the running of the time for appeal can be terminated and made to run anew by virtue of a mere oral ruling. We have no doubt that the principles applicable are the same. So in Marn v. Reynolds, supra, 44 Haw. at 659, 361 P.2d at 386, we held that an oral motion for rehearing was of no legal significance in tolling the time for appeal, though the filing of amended findings and conclusions within ten days of judgment pursuant to an oral motion for such amendment did toll the running of the time for appeal and cause it to be computed from the date of such filing instead of from the entry of judgment.

In the present case it was not until the time for appeal had expired that any further paper was filed by or under the authority of the court. When filed on March 19, 1962 it recited that the court had intended to write a detailed decision but lacked time to do so, then “ordered that the motion to set aside filed herein on January 5, 1962, is hereby denied.” Cf., Deena Products Co. v. United Brick & Clay Workers of America, 195 F.2d 612 (6th Cir.), dismissing the appeal in a ease in which the trial court attempted to reinstate the motion for new trial more than thirty days after denial thereof and then again deny it.

Harriet Bouslog (John E. Ahrens and Bouslog & Symonds of counsel) for the movant, plaintiff-appellee. Lincoln J. Ishida, Deputy Corporation Counsel, City and County of Honolulu (Stanley Ling, Corporation Counsel, with him on the memorandum) for defendants-appellants.

Furthermore, appellants failed to take a precautionary appeal within the allotted time — thirty days — computed from the entry of the denial order. Cf., Madden v. Madden, 43 Haw. 148. Had they considered the point they certainly would have realized that it was extremely doubtful that the time for appeal could be extended beyond this thirty days. They did nothing to safeguard their right of appeal.

The appeal was untimely and this court is without jurisdiction to hear it. Motion granted.

1 It is conceded that no written decision was necessary.

2 As stated in Ribaudo: “* * * it is clear that, as between the Court functioning in bankruptcy and in civil proceedings, it has much greater powers to entertain petitions for rehearing in bankruptcy. It may be done even after time for appeal has elapsed.” (p. 932).

3 Concerning Rule 60(b), as explained in Sleek: “The finality of the substantive decision is not affected by these extraordinary post-judgment proceedings unless or until a new trial is actually ordered. These factors considered, we think it is neither necessary nor desirable to impose by implication a ten-day limit on reconsideration of a denial of relief under Rule 60(b), so long as rehearing is requested and granted within the thirty day period during which the ruling under Rule 60(b) is appeal-able.”