In Re the Trust Created by Declaration of Trust of Dean , 47 Haw. 304 ( 1963 )

DISSENTING OPINION OE

TSUKIYAMA, C. J„ IN WHICH CASSIDY, J., JOINS.

In Madden v. Madden, 43 Haw. 148 (1959), this court, adopting the rule pronounced in Green v. Reading Co., 180 F.2d 149, Ohio Public Service Co. v. Fritz, 274 U.S. 12, and United States v. Crescent Amusement Co., 323 U.S. 173, held that the filing of a motion to amend a judgment under Rule 59(e) of the Hawaii Rules of Civil Procedure suspends the finality of the judgment until the motion has been disposed of and that an appeal taken in the interim is a “nullity.”

In the case at bar, the judgment in question was entered on May 3, 1961, against which a motion to amend was filed. Pending said motion, the judgment lacked finality and appealability. Nevertheless, a notice of appeal was abortively filed on May 16, 1961. On May 20, 1961, the judgment reached finality when the trial court entered an order partially amending the findings of fact.

Although in Madden the appellant had, under similar circumstances, filed a timely amended notice of appeal, in the instant case the notice of appeal was neither renewed nor amended. Being concededly a nullity, it does not appear to be compatible with sound procedural standard to resort to the expedience of resuscitating the notice of appeal by the application of artificial respiration in the form of a fictional theory that appellants, by referring in their supersedeas bond to the notice of appeal of May 16, 1961, in effect “refiled” the same. The purpose of a supersedeas bond is to stay execution pending appeal. It is not a notice of appeal, nor is it a substitute therefor. It cannot revivify a defunct notice. Obviously, appellants themselves did not file the bond to accomplish such purpose.

I find it difficult to accept a theory which leans so far toward the outer fringe of liberality as to countenance or condone what appears to be a patent, albeit unwitting, deviation from fixed rules or established judicial pronouncements.