Summary
In Rocha v. Aczon, 53 Haw. 108, 109, 488 P.2d 135 (1971), this court, in construing the proviso in Rule 9(c) "cost of the transcript of record in the court below" shall be taxable in this court as part of the costs in favor of the prevailing party, stated, "The rule refers to the original transcript filed as part of the record on appeal and not to a copy of the transcript obtained by a party for his own convenience."
Summary of this case from Sugue v. F.L. Smithe Machine Co.Opinion
No. 5058
August 25, 1971
RICHARDSON, C.J., MARUMOTO, ABE, LEVINSON, JJ., AND CIRCUIT JUDGE N. DOI IN PLACE OF KOBAYASHI, J., DISQUALIFIED
Bert T. Kobayashi, Jr., ( Kobayashi, Toyofuku and Koshiba of counsel) for defendant-appellee, for the motion.
Joseph A. Ryan ( Ryan Ryan of counsel) for plaintiffs-appellants, contra.
In this case, we affirmed the judgment appealed from in a memorandum opinion, and appellee has moved for taxation of his costs and attorney's fee against appellants under Rules 9(c) and 9(e) of the rules of the Supreme Court.
Under Rule 9(c), appellee claims cost of a copy of the transcript of testimony in the circuit court. That rule provides that the "cost of the transcript of record in the court below" shall be taxable in this court as part of the costs in favor of the prevailing party. The rule refers to the original transcript filed as part of the record on appeal and not to a copy of the transcript obtained by a party for his own convenience. Cf. Jewell v. Harper, 199 Ore. 223, 260 P.2d 784 (1953); Rosenthal v. Brangier, 37 F.R.D. 248 (D. Haw. 1965); Chapman v. First Insurance Co. of Hawaii, 255 F. Supp. 710 (D. Haw. 1966).
Under Rule 9(e), appellee claims that he is entitled to have attorney's fee taxed in his favor because the appeal was frivolous. In this case, the appeal was not frivolous.
The motion is denied.