
    MAURICE L. SILVER, M.D., Plaintiff-Appellant, v. CASTLE MEMORIAL HOSPITAL, a Hawaii non-profit corporation, et al., Defendants-Appellees
    No. 4998
    September 21, 1972
    RICHARDSON, C.J., ABE, LEVINSON AND KOBAYASHI, JJ., AND CIRCUIT JUDGE VITOUSEK IN PLACE OF MARUMOTO, J., DISQUALIFIED
   Per Curiam.

Petitioner, in his motion to recall mandate, claims newly discovered evidence which disqualifies, as a matter of law, Justice Bert T. Kobayashi and Circuit Judge Betty M. Vitousek from sitting as justices in the above entitled case.

We are of the opinion that Petitioner’s claim of newly discovered evidence is ill-advised and irresponsible. Petitioner has further failed to prove the applicability of the proscriptions of HRS § 601-7.

The affidavit of Roy A. Vitousek, Jr., Esq., filed with a memorandum in opposition to motion for recall of mandate by appellee John J. Lowrey, shows clearly that Judge Betty M. Vitousek’s spouse is not a counsel for a party in the case. Thus, HRS § 601-7(a) is not applicable. Petitioner has also failed to show the applicability of HRS § 601-7(b) as to Judge Vitousek.

Petitioner has also failed to show the applicability of HRS § 601-7(a) as to Justice Kobayashi. Thus, if HRS § 601-7(b) is to be applicable, Petitioner’s affidavit for disqualification must be filed in a timely manner. Honolulu Roofing Company v. Felix, 49 Haw. 578, 615-16, 426 P.2d 298, 322 (1967). Petitioner, however, is precluded from seeking the disqualification of Justice Kobayashi at this belated stage especially in the light of his full knowledge of the so-called “newly discovered evidence” even prior to the inception of Petitioner’s case in chief. See Record, vol. 24, at 68-72, Silver v. Castle Memorial Hospital, 53 Haw. 475, 497 P.2d 564 (1972).

We are of the opinion that Petitioner was derelict in not filing an affidavit for disqualification in a timely fashion to give Justice Kobayashi an opportunity to refresh his recollection, if any he has, and thus recusing himself if the situation so dictates. But see In re Bouslog, 41 Haw. 270, 272 (1956), on the non-applicability of HRS § 601-7(b) as to appellate judges.

An order denying motion to recall mandate will be filed in accordance with this opinion.  