PATRICK FORTUNE and LETHINE FORTUNE, Respondents/Appellants, v. HAJA MARIAM MASSAQUOI and JAMES MASSAQUOI, Petitioners/Appellees.

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

Heard: December 12, 1981. Decided: February 5, 1982.

1. The failure to file an appeal bond and to serve notice of completion of appeal as required by statute are grounds for dismissal of the appeal.

Appellants excepted to and announced an appeal from the final judgment in a petition to foreclose a mortgage, filed a bill of exceptions, but failed to file an appeal bond and serve a notice of the completion of the appeal. In the Supreme Court, the appellees filed a motion to dismiss the appeal, which was granted and the appeal dismissed.

No one appeared for the appellants. J Emmanuel R. Berry appeared for the appellees.

MR. JUSTICE MORRIS delivered the opinion of the Court.

According to the records before us, in March, 1977, the appellants herein credited the amount of $15,872.30 from the appellees and promised to repay said amount on June 2, 1977. Appellants executed a mortgage agreement for their one town lot in Paynesville, Montserrado County, and a warranted deed covering said lot to guarantee payment of the amount. When the appellants failed to settle their obligation with the appellees, the latter petitioned the People’s Sixth Judicial Circuit Court for foreclosure of the mortgage. The records also reveal that the appellants were served with the writ of summons and the petition but they did not appear, nor did they file an answer. When the case was assigned for trial, the judge ordered that the notice of assignment be served on the appellants and they were duly served with said notice of assignment.

The appellees were represented at the trial by Counsellor J. Emmanuel R. Berry and the respondents/appellants represented themselves. Co-appellant Patrick Fortune for himself and his wife Lethine Fortune confessed judgment and asked the mercy of the court to grant him time to pay the amount since he had just been employed and was on three-month probation. According to him as soon as they received the loan, he was charged with conspiracy and dismissed by the President of Liberia. Consequently, he could not get a job as he had to present a clearance before being employed. His case was finalized in 1980 after he had obtained a certificate from the court.

In his final judgment, the judge gave the appellants thirty days or one calendar month to redeem the mortgaged property but they excepted to this judgment and announced an appeal, and thereafter filed the below bill of exceptions, the only jurisdictional step they took, according to the records:

“Respondents in the above entitled cause of action most respectfully pray this Honourable Court for the approval of their bill of exceptions by Your Honour for the following legal and factual reasons to wit:

“1. Because respondents say that though they were not represented in court by any counsel during the trial yet they were dissatisfied with the final judgment for giving them thirty (30) days or one (1) calendar month within which said mortgaged property may be redeemed, hence they then and there excepted to the said final judgment.

“2. And also because respondents say that whilst it is true that their failure to appear and or file their answer automatically threw them out of the court, but owing to the sound and timely discretion of the court, they were considered with a notice of assignment, said case being that of real property, to appear for the hearing. Yet, instead of giving respondents a longer time for the redemption of the property, Your Honour only gave them thirty (30) days or one (1) calendar month and hence respondents then and there excepted and announced an appeal to the People’s Supreme Tribunal, sitting in its October Term, A. D. 1981.

“WHEREFORE, and in view of the foregoing legal and factual reasons, respondents request that Your Honour approve their bill of exceptions so as to have said matter reviewed by the above mentioned court (The People’s Supreme Tribunal) sitting at the time mentioned supra. Respectfully submitted.

Respectfully submitted, Sgd. Patrick and Lethine Fortune

Respondents for themselves”

At the call of the case for hearing, counsel for petitioners/ appellees brought to our attention that he has filed a motion to dismiss the appeal because the appellants had not completed their appeal. We also quote said motion for the benefit of this opinion.

“Movants in the above entitled cause most respectfully move this Honourable Court and showeth unto Your Honours the following, to wit:

1. That on the 7th day of July A. D. 1971, final judgment was entered against the respondents in this proceeding, to which they excepted and announced an appeal to this Honourable Court; but up to the present the said respondents have failed to complete the appeal by filing an appeal bond and a notice of the completion of the appeal within the sixty day statutory period as provided by law.

WHEREFORE, movants respectfully pray Your Honours to dismiss the appeal and order the trial court to resume jurisdiction and enforce its judgment.

Respectfully submitted. The above named Movants by and thru their Counsel:

THE BERRY LAW OFFICE. Sgd. J. Emmanuel R. Berry

Counsellor-At-Law

Dated in Monrovia this 25th day of November, A.D.1981.

Filed: November 25, 1981 at 4:00p.m. Sgd. Etna Scott-Acolatse

CLERK”

This Court is very reluctant to dismiss cases without going into the merits and demerits of said cases. However, when a party has failed to adhere to the provisions of the statute governing the taking of an appeal, this Court becomes powerless to act otherwise but to conform with the statutory provisions. According to the present statute, failure to file an appeal bond and to serve notice of the completion of the appeal are grounds for the dismissal of the appeal. Civil Procedure Law, Rev. Code 1:51.16.

Because of the facts aforementioned and the law cited, we have no other alternative but to grant the motion to dismiss the appeal with costs against the appellants. And it is so ordered.

Motion granted; appeal dismissed.