BHUPENDRA KUMA & VIRIENDRA KUMA, Manager and Agent of WOKOLOR ENTERPRISES (Our Shop), Movants/Appellants, v. FRANK A. SKINNER, JR., President and Proprietor of WOKOLOR ENTERPRISES (Our Shop), Respondent/Appellee.

Heard: April 23, 1985. Decided: June 20, 1985.

1. Where a notice of assignment has been served on a law firm, a request for postponement due to the inability of a single lawyer to attend upon the assignment without showing why another lawyer cannot attend the hearing, and counsel thereby fails to appear for the trial, the failure to attend shall be deemed an abandonment. A judge does not commit error in proceeding with the trial of the case under such circumstances.
2. A trial judge does not commit error in not passing on issues of fact when deciding issues of law, since matters of fact are reserved for proof at the trial of the factual issues.
3. The only application which can be considered by a court after rendition of a final ruling or judgment is a motion for relief from judgment or information on issues which, if the judge had considered prior to the ruling or judgment, would have had an adverse effect on his ruling, so that he may rescind or modify the ruling or judgment. The remedy is not to proceed by submission.
4. An appeal may be dismissed by the trial court on motion for failure of the appellant to file a bill of exceptions within the time allowed by statute, and by the appellate court after filing of the bill of exceptions for failure of the appellant on the hearing of the appeal, to file an approved appeal bond, or to serve and file a notice of completion of appeal as required by statute. Rev. Code 1: 51.16.

The appellants, managers, agents and partners of the Wokolor Enterprises, were sued in equity by the appellee, president of the aforesaid Enterprise, for proper accounting. The matter having been submitted to a board of arbitration for investigation, the board, after a hearing, ruled in favor of the appellee. The ruling was affirmed by the trial court upon submission to the court. An appeal taken by the appellant was later withdrawn and in its stead a motion was filed for relief from judgment and stay of execution. After several assign-ments for hearing of the motion, at which counsel for movant failed to appear, the trial court proceeded to hear the motion and to rule in favor of the appellee. Counsel appointed by the court to take the ruling for the appellant, excepted to the ruling and announced an appeal to the Supreme Court.
In the bill of exceptions, the appellant contended that the trial judge erred in proceeding with the hearing of the motion in the absence of the appellants or their counsel, and in not passing on certain issues which they considered to be legal in nature. The Supreme Court rejected the contentions, holding that the appellants’ absence from the hearing, after having been duly notified thereof, constituted an abandonment of the case by them. The letter for postponement of the case because one lawyer in the law firm could not attend, without explaining why another lawyer of the law firm could not be present, was not a sufficient basis for the trial court to postpone the case, the Supreme Court opined. Therefore, the Court said, appellee had every right to request the trial court to permit him to argue his side of the case, and the trial court did not err in granting the said request.
On the question of the alleged failure by the trial court judge to pass upon certain issues in the motion, the Supreme court held that the issues to which reference was made were factual, not legal, and could only have been entertained had the appellant been present to present factual proof in support of the allegations. The judge could not therefore pass on such factual matter when passing on the motion. Moreover, the Court said, the contentions that the judge assumed jurisdiction over the case after an appeal had been announced and that counsel for appellee had engaged in unethical conduct, were matters for information before the appellate court and complaint to the Grievance and Ethics Committee respectively, and not issues of law which the trial judge could have passed upon.

As to the submission filed before the trial court following the rendition of judgment, the Supreme Court said that the appellant should have filed a motion for relief from judgment or information, rather than a submission. The trial judge was therefore correct in dismissing the submission, the Court opined. Accordingly, the judgment of the trial court was affirmed.

No one appeared for the appellants/movants. M. Fahn-bulleh Jones appeared for the appellee.

MR. JUSTICE MORRIS delivered the opinion of the Court.

The records of this case reveal that the movants/appellants were serving as manager and agent respectively, of Wokolor Enterprises, a shop situated in Robertsport, Grand Cape Mount County, while the appellee was president and proprietor of the said business.
The appellee instituted an action of bill in equity for proper accounting against the movants/appellants who, as alleged in the record, were partners in Wokolor Enterprises. The records reveal also that the action for proper accounting, filed by the appellee was decided in his favor, with the court affirming, with modification, the report of the board of arbitrators. An appeal was announced but subsequently withdrawn. Thereafter, however, the movants/appellants filed a motion for relief from judgment and stay of execution. The motion having been assigned several times and the movants’ counsel having failed to appear, the trial court proceeded with a hearing and decided the motion in favor of the appellee. The court appointed counsel noted exceptions and announced an appeal on behalf of the movants/appellants. The movants/appellants having perfected their appeal, the case is now before this Court for a final determination.

When the case was called for hearing, after due notice to the parties, counsel for movants/appellants again failed to appear. Thereupon, counsel for the appellee requested permis-sion to argue his side of the case, noting that the briefs of both sides had already been filed in accordance with Rule 4, Part 6, of the Supreme Court Rules. The counsel then argued his side of the case, after the Court had granted him permission. The five-count bill of exceptions are restated in the movants/ appellants’ brief under points to be argued. Counts one, two and three of said bill of exceptions, as restated in the brief under points of argument, which state in substance that the judge committed reversible error in deciding the case in the absence of the appellants/movants’ counsel, we hereby overrule these counts because a notice by way of a telegram, was sent to the counsel, the Gibson Law Firm. Although Counsellor Julia Gibson of the said Law Firm replied the radiogram, wherein she requested an excuse for Counsellor Raymond A. Hoggard, who was said to have gone on an assignment, she failed to state why she, Counsellor Julia Gibson, and the other Counsellors of the Gibson & Gibson Law Firm, could not attend the trial. This in itself was an abandonment and the judge therefore rightly decided the case as he did.

Regarding count four of the bill of exceptions, in which it is contended that the judge did not pass upon the legal issues raised in counts four, five, six and seven of the motion, the Court says that this contention cannot be considered, because counts four, five, six and seven of the motion, as revealed by the records, are factual issues which, if the movants/appellants’ counsel had not abandoned the case, the appellants may have been requested to prove. Additionally, the other contentions that the judge assumed jurisdiction over the case after an appeal was announced, and that the counsel for the appellee had committed an alleged unethical act, as stated in counts four through seven of the motion, are issues that should have been referred to the appellate court by way of information and to the Grievance and Ethics Committee respectively. They are not issues of law which the trial judge could to have passed upon as contended in the aforesaid counts. Therefore count four of the bill of exceptions and count four of the brief are overruled. Count five of the bill of exceptions, with count five of the brief, refers to the late appearance of counsel for the movants/appellants after the ruling on March 2, 1982, and the making of a submission by the movants/appellants which was dismissed by the court for lack of proper notice to the opposing party. Count five again cannot be conceded because if the judge had given final ruling, the only application that could be considered by the Court would be by a motion for relief from judgment or by information on issues which, if the judge had considered prior to his ruling, would have had an adverse effect on his ruling, so that he may either modify or rescind his ruling. The remedy was not to proceed by submission. Count five is therefore overruled.
In closing, we would like to mention here that the act of counsel for the movants/appellants in this case was very regret-table and irregular, in that, they continually absented them-selves from the trial and final determination of the case. Even when the case was called before us for hearing, the counsel for appellants/movants again failed to appear, which action could have rendered the appeal dismissible under Rev. Code I: 51.16, p. 253, under the caption of dismissal of appeal for failure to proceed. We hereunder quote the said statute:

“An appeal may be dismissed by the trial court on motion for failure of the appellant to file a bill of exceptions within the time allowed by statute, and by the appellate court after filing of the bill of exceptions for failure of the appellant to appear on the hearing of the appeal, to file an appeal bond, or to serve notice of the completion of the appeal as required by statute.”
However, in order to mete out transparent justice, we decided to review the appeal by going through the bill of exceptions and the briefs. Having therefore carefully perused and considered the bill of exceptions as well as the briefs of the movants/appellants and the appellee, it is our candid opinion that the appeal must crumble and the judgment of the lower court affirmed.
In view of the above, the law cited and the surrounding circumstances, couple with the facts of the case, we hold that the judgment of the lower court should be and the same is hereby affirmed.

Judgment affirmed.