In Re the Trust Created by Declaration of Trust of Dean

387 P.2d 218, 47 Haw. 304, 1963 Haw. LEXIS 94

• Court: Hawaii Supreme Court
• Decided: December 3, 1963
• Docket: 4252
• Status: Published

Opinions

OPINION OF THE COURT BY

LEWIS, J.

We are confronted with a jurisdictional question. 'Notice of appeal was prematurely filed on May 16, 1961. Though judgment was entered on May 3, 1961, a timely ■“Motion to Amend and Supplement Findings of Fact and Conclusions of Law and Motion for New Trial” was filed on May 8,1961. This tolled the time for appeal until entry on May 20,1961 of the order partially granting the motion to amend and denying a new trial. Madden v. Madden, 43 Haw. 148; H.R.C.P., Rule 73(a). The court’s oral. ruling on May 12, 1961 did not start the appeal period running anew because entry of an order was required to do that. Cf., Scott v. Liu, 46 Haw. 221, 225, 377 P.2d 696, 700, reh’g den., 46 Haw. 289, 290, 378 P.2d 880, 881; Healy v. Pennsylvania R.R., 181 F.2d 934 (3d Cir.).

While Madden holds that a notice of appeal is premature and a nullity when filed while the time for appeal is tolled, it also holds that an “amended notice of appeal” filed at the proper time is effective. Here the factual situation is not the same, and the question is what will suffice to constitute refiling of the notice of appeal at the proper time.

In Carter v. Campbell, 285 F.2d 68, 71 (5th Cir.),¹ notice of appeal was prematurely filed, but within the proper appeal period (sixty days in this instance) appellant’s attorney served an application for extension of time for filing the record and obtained a court order granting the extension, also obtained an order for transmission of the original exhibits and an order granting leave to prosecute the appeal on the original record. The court held:

“On the assumption that appellant’s notice of appeal filed December 14, 1959 was a nullity and that the time for appeal began to run only when the formal judgment was entered December 23rd, we think that the actions taken within sixty days from December 23rd are sufficient to constitute timely notice of appeal.”

In Federal Deposit Ins. Corp. v. Congregation Poiley Tzedeck, 159 F.2d 163, 166 (2d Cir.), Judge Learned Hand described the minimum requirements of a notice of appeal as follows:

a* * * The least requirement, which will be tolerable, is that some paper shall be accessible in the records of a court upon which both judges and parties can rely. * * *”

In passing upon what will suffice as a notice of appeal, more stress should be put upon what appears of record than the wording of it. Estate of Chinn, 44 Haw. 613, 620, 359 P.2d 932, 935-36. The requirements of a notice of appeal are that it be filed with the circuit court, specify the parties taking the appeal, and designate the judgment or part thereof appealed from. H.R.C.P., Rule 73(a) (b). It also is required that notification of the filing of the notice of appeal shall be given by appellant by serving the same. Rule 73(b). But service is not essential to the validity of the appeal. Rule 73(a).

In the present case within the proper appeal period — ■ which commenced May 20, 1961 upon the entry of the order disposing of the motions of May 8, 1961 — appellants filed a supersedeas bond signed by themselves as principals, reciting that judgment was entered in the First Circuit Court on May 3, 1961 against the principals, and that the principals had filed “a notice of appeal from said judgment to the Supreme Court of the State of Hawaii on the 3d [sic] day of May, 1961.” Thus the parties taking the appeal and the judgment appealed from were specified. The bond was conditioned for the diligent prosecution of the appeal. Hence the bond reaffirmed the intention to appeal and did so of record. Appellees were not misled;2 they appeared in this court, briefed the case on the merits, and in their answering brief agreed that this court had jurisdiction. Thereafter this court sua sponte raised the jurisdictional question.

Masaji Marumoto (Ton Seek Pad on the brief) for appellants. Herbert Y. O. Ghoy {Fong, Miho, Ghoy & Robinson of counsel) for appellees.

Conceding that the notice of appeal filed May 16, 1961 was a nullity, nevertheless by reference thereto in the supersedeas bond it was given life and in effect refiled. The doctrine of Scott v. Liu, has no application where, as here, there is something of record that serves the purposes of the rules governing appeals.

Accordingly, we hold that this court has jurisdiction, and will hear argument on the merits.

1 Appellees contend that the Fifth Circuit follows a “liberal rule,” citing United States v. Stromberg, 227 F.2d 903, 904-05 (5th Cir.), quoted in Carter v. Campbell, supra, pp. 71-72. Appellees say this is a minority rule, but in the light of Foman v. Davis, 371 U.S. 178, 9 L. Ed. 2d 222, 83 S. Ct. 227, that is questionable. In any event, we are of the view that Carter was rightly decided. On the exact point here at issue no case other than Carter has been cited. We express no opinion as to the acceptability of decisions in which the appeal was sustained on the basis of papers, not styled as notices of appeal, filed during the proper appeal period without there being on file any notice of appeal to which such papers could give life.

2 Cf., Estate of Chinn, supra, 44 Haw. at 620, 359 P.2d at 935-36; Foman v. Davis, supra, 371 U.S. 178, 9 L. Ed. 2d 222, 83 S. Ct. 227.