HENRIETTA BLAMOH-COLLINS, Appellant, v. EDWARD COLLINS, Appellee.

APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Heard: (no date specified). Decided July 8, 1982.

1. The failure of counsel for a party to appear for the hearing of a case, although duly notified, is not only a disregard of the authority of the court, but also constitute a waiver and an abandonment of the case.

2. A motion for a new trial should be denied by the trial court where the evidence in support of the verdict is clear and convincing.

3. A motion for a new trial is a request to the trial judge to set aside a verdict on the basis that the trial was improper or unfair because of specified prejudicial errors committed during the trial, whilst ‘arguments’ are remarks by counsel to the trial judge or jury on the merits of the case or on points of law, which are generally limited in time, order, and content, by rule of court; but argument is not evidence.

4. A motion for a new trial, being an issue of law, and arguments, being an effort to convince the trial judge, the granting or denial thereof is absolutely discretionary on the part of the trial court, except and unless it is shown that the trial court abused its discretion. In the absence of such showing, the motion will be legally and properly denied.

Appellant was sued by appellee for divorce on the ground of incompatibility of temper. Following a jury trial, a verdict was returned in favour of the appellee. Appellant thereupon filed a motion for a new trial which was denied by the trial judge, who thereafter rendered judgment confirming the verdict. From this judgment, exceptions were noted and an appeal announced to the Supreme Court. In the bill of exceptions, appellant raised two basic contentions: (a) that the trial judge had ruled on the motion for new trial without entertaining arguments on the motion and in the absence of the appellant and her counsel, which was a denial of her day in court; and (b) that the verdict of the jury was contrary to the evidence adduced at the trial and the instructions of the trial judge.

The Supreme Court rejected both contentions, holding that the records showed that appellant’s counsel was informed of and knew that the hearing on the motion had been assigned, but that he had conveniently eluded the assignment under the pretense that he was engaged in a criminal trial. The Court opined that under the circumstances, the appellant had suffered a waiver and was therefore estopped from contending that she had not had her day in court. In any event, the Court said, the motion for a new trial was of a legal nature, and the granting thereof was solely and absolutely within the discretion of the trial judge, unless it could be shown that he had abused the discretion. Moreover, the Court observed that the appellant had suffered no prejudice by the action of the trial judge since exceptions had been noted to the ruling and an appeal announced from the judgment.
On the issue that the verdict was contrary to the weight of the evidence adduced at the trial, the Court held that the appellant had failed to show specifically the prejudicial errors committed by the trial judge in his denial of the motion for a new trial, especially since the motion had stated only that the verdict was contrary to the evidence, without showing the evidence which the verdict ran contrary to.

Having determined that the trial judge did not err in denying the motion and in rendering a final judgment against the appellant, the Supreme Court affirmed the judgment of the trial court.

Raymond A. Hoggard appeared for appellant. E. Wade Appleton appeared for appellee.

MR. CHIEF JUSTICE GBALAZEH delivered the opinion of the Court.

Plaintiff/appellee sued defendant/appellant in an action of divorce for incompatibility of temper. The written pleadings commenced as usual with the complaint, filed by Edward A. Collins in the Sixth Judicial Circuit Court, Montserrado County, during the June Term of the said Court, A. D. 1977. The complaint having been followed by an answer and a reply, pleadings were rested. Thereafter, the issues of law were disposed of and the case ruled to trial on the facts. A jury trial was conducted and a verdict returned in favour of the appellee. A motion for new trial was filed, resisted, heard and denied by the trial court. Final judgment was thereafter rendered against the appellant, to which she excepted and announced an appeal to this Court for review.

The appellant, in her bill of exceptions, submitted for consideration of the Court the following points, quoted hereunder verbatim for the benefit of this opinion:

“1. Because defendant submits that Your Honour erred and committed a reversible error when on the 23rd day of August Your Honour proceeded with the case, denying her motion for new trial in her absent, as well as denying her the right of argument when no resistance was ever served on counsel for defendant as is statutorily required. See court’s final judgment to which defendant then and there excepted.

2. And also because defendant avers that Your Honour erred and committed a reversible error when Your Honour proceeded to deny her motion for new trial without argument, especially so, when copy of the alleged resistance was never served upon defendant, which would have been specifically brought out at the argument, had defendant been privileged to present and argue said motion, to which defendant there then expected.”

The controversial issues which this Court’s attention has been called to are:

(1) Whether or not the appellant received a copy of appellee’ s resistance and thus had notice of the hearing of the motion for new trial?

(2) Whether or not a trial court is legally bound to entertain argument before granting or denying a motion for new trial?

For the benefit of this decision, here is a summary of the motion and its resistance thereto: The appellant succinctly contended, firstly, that the verdict was contrary to the weight of the evidence adduced at the trial and, secondly, that the verdict was not only contrary to the evidence but was also contrary to the instructions given by the court. On the other hand, the appellee contended that the verdict was supported by the evidence adduced at the trial. He also maintained that the mere averments by the appellant that the verdict was contrary to the evidence adduced at the trial and the instructions of the court, without stating specifically the evidence and law, was insufficient to sustain appellant’s said contention.
To enable us to decide the first point raised in the bill of exceptions, i.e., that neither she nor her counsel was present when the trial court ruled on the motion for a new trial, let us take recourse to the records found in the case file. The records reveal that on the 23rd day of August, 1977, same being Tuesday, the 9th day’s jury session of the court, the following notation was made:

“THE COURT: Counsellor Raymond Hoggard, of counsel for defendant, told us that he is engaged in a trial which is being conducted by the First Judicial Circuit Court, down-stairs. Even though we have sent for him, we are asking Counsellor Lewis Free to take the court’s ruling on the defendant’s motion for new trial and the resistance interposed by counsel for plaintiff. AND IT IS SO ORDERED.”

From the above, it can be seen that counsel for appellant had notice of the hearing of the motion but conveniently eluded the assignment under the pretense that he, Counsellor Hoggard, was engaged in a criminal trial. In light of the foregoing, we hold that appellant’s contention that she was denied the required notice cannot be sustained. We also hold that appellant’s counsel had notice of the argument, as admitted in counts one and two of appellants brief. The failure to appear was not only a disregard of the authority of the court, but also constituted a waiver. Accordingly, appellant is estopped from raising the issue of not being present when the court ruled on the motion and the resistance thereto. BLACK’S LAW DICTIONARY (5th ed., Estoppel). The court also rules that such failure constituted an abandonment of the case and further says that the appellee cannot be made to suffer on account of the dereliction of the appellant.Pearson v Turner, [1908] LRSC 5; 2 LLR 8 (1908).

A further review of the records shows that a copy of the resistance was served on appellant’s counsel and that he intentionally avoided receiving it. This Court is of the considered opinion that the ruling of the trial judge denying the appellant’s motion at the 9th day’s jury session of the court, being August 23, 1977, in the absence of appellants counsel, was no error. In Kasimu v. Republic, [1976] LRSC 31; 25 LLR 80 (1976), this Court held that a motion for a new trial should be denied where the evidence in support of the verdict is clear and convincing.

The second contention which was also strongly argued before this Bench was the alleged denial by the trial court of appellant’s right to argue her motion for a new trial, which was countered on the ground that arguments on a motion are only an effort to convince the judge on the points of law pleaded, and that the neglect by the trial court to entertain them is no ground for reversing a judgment that was properly rendered.

In our attempt to resolve this issue, it has become necessary for us to define a motion for a new trial and an argument. A motion for new trial is a request to the trial judge to set aside a verdict on the basis that the trial was improper or unfair because of specified prejudicial errors committed during the trial, whilst arguments are remarks by counsels to the trial judge or jury on the merits of the case or on points of law, which are generally limited in time, order and content by rule of court. An argument is not evidence. BLACK’S LAW DICTIONARY 98 and 914 (5th ed.)

In the instant case, the focal point of law which the motion craved to be ruled upon, was whether or not the verdict which was sought to be set aside was indeed contrary to the weight of the evidence adduced at the trial and the instructions of the court, as contended by counsel for appellant and resisted by counsel for appellee. We note that throughout the bill of exceptions, as well as the entire trial records, there is no showing anywhere therein that specific prejudicial errors were committed by the trial judge relative to principles of law or evidence, except for appellant’s mere repeated averments that “the verdict is contrary to the evidence and the instructions of the court.”

A motion for new trial, being an issue of law, and argument being an effort to convince the trial judge, the granting or denying thereof is absolutely discretionary on the part of the trial court, except and unless it is shown that the trial court abused its discretion. In the absence of such showing, the motion will be legally and properly denied. Freeman et. al., v. Freeman and Brownell,[1944] LRSC 2; 8 LLR 187 (1944) and Monrovia Construction Corporation v. Wazami, [1974] LRSC 26; 23 LLR 58 (1944). Appellant’s contention that she was denied the opportunity to argue her motion for new trial therefore has no support in law or in the evidence adduced at the trial.
However, even assuming, without admitting, that a copy of the resistance was not served on appellant and that she was also not allowed to argue, the Court wonders what harm did the appellant suffer as a result of those acts.

The absence of the appellant’s counsel, both during the hearing of the motion and during the rendition of final judgment, imposed no hardship on appellant as she did not suffer any injury as a consequence. Indeed, after the overruling of the motion and rendition of final judgment, exceptions were noted and an appeal announced therefrom and perfected by appellant within the statutory period. Therefore, counts one and two of the bill of exceptions are not sustained. Civil Procedure Law, Rev. Code 1: 5.14.

In view of the facts disclosed by the records and the laws cited herein, we have no other alternative but to confirm and affirm the judgment of the trial court, with costs against the appellant. The Clerk of this Court is therefore hereby ordered to send a mandate to the lower court to resume jurisdiction over the case and enforce its judgment. And it is hereby so ordered.
Judgment affirmed.