Lim v. Motor Supply, Ltd. , 45 Haw. 111 ( 1961 )

DISSENTING OPINION OE

CASSIDY, J.

Although the statute (R.L.H. 1955, § 208-1) and our rule (Rule 13) governing appeals from a district magistrate-on points of law should be liberally construed (Humburg v. Namura, 13 Haw. 702), in my opinion, it requires unwarranted indulgence and a disregard of the prior rulings of this court, as I understand them, to overlook the deficiency of this appeal.

Rule 13 requires the magistrate’s certificate of appeal to include a statement of “the points of law upon which the appeal is taken.” This requirement is mandatory. Titcomb v. Naeole, 10 Haw. 346; Territory v. Schaefer, 19 Haw. 214. If the certificate itself does not set forth points of law, it is necessary that it refer specifically to the points of law designated in the notice of appeal or set forth in some other annexed paper. Phillips v. Lun Chong Co., 14 Haw. 296; Peterson v. Lau Tong, 30 Haw. 191. The requirement of the rule is not met by merely designating the points of law intended to be relied on in the notice of appeal. Territory v. Kraft, 37 Haw. 230; Murphy v. McKay, 23 Haw. 173. In the latter case it is clearly pointed out that it is the appellant’s obligation to see to it that a proper certificate is prepared and filed. I quote from the opinion:

“* * * There is no impropriety in stating in the notice of appeal the points of law upon which the appeal is taken and we regard it as good practice to do so, yet such recital in the notice of appeal does not dispense with the necessity of stating the points of law in the district magistrate’s certificate of appeal. It is only on points of law that an appeal from a judgment of a district magistrate can be brought here. The statute allowing the appeal contemplates that the appellant shall perfect his appeal, that is, do the things that he must do, in order to appeal, within ten days, and if he presents his points of law on which he appeals in writing, whether in his notice of appeal or otherwise, to the district magistrate within the time required, lie lias done all that lie can do, bnt must see that tbe certificate of appeal states tbe points of law and that sncb certificate is before tbis court prior to tbe argument.” (pp. 174-175.)

In tbis case, appellant’s notice of appeal sets forth a point of law intended to be relied on. However, tbe district magistrate’s certificate of appeal recites merely that tbe appeal “is taken on points of law.” No reference is made in tbe certificate to tbe point of law designated in tbe notice of appeal or to any point of law set forth in tbe magistrate’s decision or in any other annexed paper. Applying tbe rule as interpreted in tbe above referred to prior decisions of tbis court, it is my opinion that tbis appeal is not properly perfected. And I do not consider Castle v. Bowler, 8 Haw. 366 (1892), to dictate a different view.

Castle v. Bowler involved an appeal on points of law from a single justice of tbe Supreme Court to tbe court in banco. Statutory authority then allowed such an appeal by notice filed within 5 days of tbe decision appealed from. Rule 4 of the court extended tbis time to 10 days. The appeal was dismissed for failure of appellant to submit a certificate to tbe justice for bis signature within 10 days of the judgment. What was said in tbe case respecting tbe contents or requirements of tbe certificate, therefore, appears to be dictum. Neither tbe statute nor any rule of court prescribed tbe form or contents for a justice’s certificate in an appeal from a single justice to tbe full court. Tbis directly appears from tbe statement in tbe dissenting opinion of Judge Dole that: “There is no requirement that Judges in Chamber shall certify upon tbe points of law in appeals on tbe law, as Rule 39 requires Police and District Justices to do.” At p. 368. I find, therefore, little, if anything, in tbis decision which is pertinent to tbe interpretation of Rule 13 or which in any way affects or detracts from the subsequent decisions applying that riile.

If we can consider the old practice permitting appeals from a single justice to the Supreme Court on points of law as analogous to that involved in this case, then Wenner & Co. v. Lindsay, 7 Haw. 119, is the decision I think we should look to.

As I read Wenner & Co. v. Lindsay its import is that where the justice rendered a decision in writing, the certificate did not have to set forth any points of law if it expressly incorporated by reference the particular points of law decided and set forth in the decision which the appellant desired the Supreme Court to review. In this respect the holding of Wenner is no different from that of Phillips and Peterson. I do not see how limiting the holding of Murphy and Kraft only to cases in which the district magistrate’s decision is rendered orally can be squared with the ruling in Wenner.

I agree with the majority’s action in denying the appellant’s motion for an order directing the magistrate to transmit a supplemental certificate. For the reasons above stated, it is therefore my conclusion that this appeal should be dismissed.