DISSENTING OPINION OE
TSÜKIYAMA, C.J., IN WHICH CASSIDY, J., JOINS.That the provisions of Rule 73, Hawaii Rules of Civil Procedure which govern the time within which an appeal must be taken to the supreme court are mandatory and jurisdictional, there can be no dispute in the wake of the rulings of this court on the subject.
The majority of this court, on the basis of its view of the facts here involved, dismisses the appeal as taken untimely under the rule. With deference, I do not concur. In essence, my conclusion is founded upon what appears *229to me on the record of this case including the clerk’s minutes to involve a situation in which the trial court, by its actions and statements including the act of entertaining defendants’ motion to set aside the order denying their motion for a new trial, virtually reinstated or revived said motion for new trial or suspended the operation of the order.
The motion for a new trial timely filed on September 1, 1961, by appellants did suspend the running of the 30-day period for appeal. H.R.C.P., Rules 59(b) and 73(a). The record clearly shows that at the conclusion of the hearing on the motion, held on November 8, 1961, the trial court took the matter under advisement stating that “a written decision on the motion for new trial will be filed.” Subsequently and on December 29, 1961, the court entered an order with nothing more than a simple denial of the motion.
On January 5, 1962, when the 30-day period for appeal had run only seven days, appellants filed a written motion to set aside the order with a request that the court enter a written decision on the motion for a new trial. The court entertained and heard the motion on January 17, 1962, and at the conclusion thereof, notwithstanding defendants’ concession that the court was not perforce required to file a written decision, again took the matter under advisement stating that “there could be a short decision on the constitution and arrest.” It is to be further noted that when the motion to set aside was heard, appellants’ period for appeal computed from December 29, 1961, had twelve more days remaining before expiration. Under the circumstances, defendants were fully warranted in believing that, while awaiting a written decision, the filing of a notice of appeal would probably be deemed abortive and hence invalid.
On March 19, 1962, the trial court entered an order *230denying the motion to set aside, which order, significantly, was headed by two titles set forth in juxtaposition: “Order on Motion to Reconsider” and “Order on Motion for New Trial.” In the text of the order, the court confirmed that it had “wished and intended to write a detailed decision” but indicated that it would not do so, because a written decision was not necessary and also because time was lacking.
Within 30 days from this order, appellants filed their notice of appeal. Appellants contend that they believed the order of March 19, 1962, was “the final judgment” and computed the time for appeal from that date. It is readily discernible, when viewed in the light of the foregoing sequence of procedural events, that appellants were confused and actually misled into believing that the trial court’s actions and statements constituted a reinstatement or revival of the motion for new trial or a suspension of the finality of its previous order of December 29, 1961. Certainly, they were justified in assuming from the statement made by the court at the hearing on January 17, 1962, that the court did not consider or intend that it had already taken its final action in the matter. Cf., Carnes v. United States, 279 F.2d 378 (10th Cir.).
There is no quarrel with the general concept that counsel should be constantly alert and when confronted with procedural technicalities, take appropriate precautionary steps. Loose and careless practice in clear disregard of procedural rules is not condoned. In the instant case, however, I find it difficult to turn askance from the extraordinary circumstances revealed by the record.
Nothing appears here to indicate that appellants were lackadaisical, negligent, or dilatory. On the contrary, the pleadings promptly filed by them in the pursuit of their cause not only demonstrated their diligence but evinced that they were laboring under a misapprehension result*231ing from the amorphous state of the proceedings in the court below. If the court had declined to entertain the motion to set aside, appellants at that stage still had twelve days left within which to file a notice of appeal. Moreover, that facet of the dual title of the order of March 19, 1962, which read “Order on Motion for New Trial,” could have served only to aggravate the distracting confusion caused by the trial court’s previous action and declarations.
It is my view that the reasoning set forth by the court in Kelly v. Pennsylvania R.R., 228 F.2d 727 (3rd Cir.), represents a sound and logical conclusion which is applicable to the case at bar. There the trial court dismissed the defendant’s motion for a new trial. Two days later the defendant filed a petition for reargument of its motion for a new trial. Well within the time prescribed for appeal, the court heard and granted the petition for reargument. Holding that the judgment lacked appealable finality pending the determination of the reinstated motion for a new trial, the appellate court said, at page 730: “* * * But if the court directs reargument of the motion for a new trial and thereby reinstates it within the appeal period the revived pendency of the original motion operates again to terminate the running of the time for appeal. In such case the appeal time will commence to run again and will be computed from the date of entry of the court’s subsequent order denying the motion, if it is denied. Meanwhile the judgment which is the subject of the pending motion for a new trial must be regarded as lacking appealable finality.”
Also pertinent is the language of the court in Sleek v. J. C. Penney Company, 292 F.2d 256 (3rd Cir.), where, in respect to an application under Buie 60(b), F.B.C.P., the court said, at page 257: “Normally, when a party aggrieved by an appealable order files a timely motion for *232a rehearing, and certainly when the court responds by ordering reargument, the underlying adjudication loses finality pending some new dispositive action by the court.”
Not having reached it, I am not concerned with the merit of the appeal. My concern here pertains to the legal effect of the trial court’s possibly inadvertent but obviously misleading actions which protracted the proceedings before it, thereby causing an inevitable delay in the filing of a notice of appeal. Incidentally, while it is true that there is no exacting requirement that a trial court render a written decision in ruling on a motion for new trial, it does not follow that all such motions may, with propriety, be disposed of without any elaboration, particularly when, as here, the court itself has proposed to render a written decision. (See Rule 21, Pirst Circuit Court Rules; also see 66 C.J.S., New Trial, § 210, p. 533.) Furthermore, in a case like the one here where the motion raised the issue of the trial court’s holding unconstititional certain statutory provisions, I think it would have been desirable and could, almost as a matter of course, have been reasonably expected that the court would render a written decision at least on the constitutional issue.
Believing that the foregoing circumstances warrant my conclusion as being a justified application of the rules to accord with the particular and unusual facts presented by the record in this case, I would deny the motion to dismiss.