C. L. HARMON, Appellant, v. REPUBLIC OF LIBERIA,

Appellee-Movant. MOTION FOR SUBSTITUTION OF REPRESENTATIVE OF DECEASED PARTY IN APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, MARYLAND COUNTY. Argued October 20, 1959. Decided January 15, 1960. A motion for substitution of a representative of a deceased party will be denied when the movant has failed to establish that the proposed substitute possesses the statutorily required qualifications. On appeal from a decree in equity foreclosing an indemnity bond, the appellant died after perfection of the appeal but before prosecution thereof. Appellee applied for substitution of the administrator of appellant’s estate, which motion was denied. 0. Natty B. Davis for appellant. Assistant Attorney General J. Dossen Richards for appellee. MR. JUSTICE HARRIS delivered the opinion of the Court. The above-named appellant was employed by the Government of the Republic of Liberia in the Bureau of Customs, Port of Harper, Maryland County, in the capacity of Collector Cashier in which he fell short in his accounts. The Republic of Liberia instituted proceedings in equity for the foreclosure of his indemnity bond, and obtained a decree against him for the payment of the sum of $19,336.89. From this decree he appealed to this Court for review and final determination; but before he could prosecute his appeal he died. The Republic of Liberia filed an application for the substitution of party, which application we quote hereunder : “Now comes J. Dossen Richards, Assistant Attorney General and of counsel for the appellee in the above entitled cause, and most respectfully moves this Hon- 590 LIBERIAN LAW REPORTS orable Court for substitution of party appellant, and for reason showeth the following, to wit: cti. That the appellant was sued by the Republic of Liberia for the violation of the condition of his indemnity bond given by him as Collector Cashier, Port of Harper, Maryland County, and a decree was entered against him, to which he took exceptions and prayed an appeal to this Honorable Court at its March, 1957, term. ” 2. That, since that time and during the pendency of the appeal, the appellant has died. To the best of appellee’s knowledge, Mr. Rollo Harmon, appellant’s father, has been appointed administrator of the appellant’s estate. The appellee, in view of the above, most respectfully prays this Honorable Court that the aforesaid Rollo Harmon be substituted for the appellant so that the appeal thus taken by him may be heard and disposed of during this session of court.” To the above application, the following resistance was filed : “Resistance of A. Rollo Harmon “A copy of an application for substitution of party having been served upon A. Rollo Harmon, of Harper, Cape Palmas, by Assistant Attorney General J. Dossen Richards, the said A. Rollo Harmon hereby files and tenders the following resistance to said application, praying that same be denied for the following legal and factual reasons to wit: “1. Because Mr. Harmon says that the said application is faulty and seriously defective in that Count 4 2 1 of said application alleges that A. Rollo Harmon, father of the late C. L. Harmon, has been appointed administrator of the late Harmon’s estate. This averment, Mr. Harmon says, should have been supported by the filing of the record or order of court indicative of his said appointment as such administrator, and not upon the mere, bare LIBERIAN LAW REPORTS 591 11 2. statement or allegation of the Assistant Attorney General. Mr. Harmon submits that administrators are appointed in harmony with certain fixed rules laid down in our statutes. Moreover, there are certain requirements they must perform prior to their appointment, all the records of which should have been made profert by the applicant to show that Mr. Harmon is indeed the administrator of his late son’s estate. This not having been done, and the averment in Count ‘2’ of the application being foreign to Mr. Harmon, Mr. Harmon prays that said application be denied, since there is nothing to show that he has been appointed to the capacity referred to in said application. And also because Mr. Harmon says that the person, namely, C. L. Harmon, against whom the foreclosure proceedings were brought, having died, the said proceedings also died with him. For even if one be appointed as administrator of C. L. Harmon’s estate, such a one would only be functioning as an agent of C. L. Harmon and, under the law of principal and agent, the principal would first have to be exhausted before levy could be made upon, or action taken against the agent. In this case, moreover, the principal having died, there is no possibility of levying upon or proceeding against him. Consequently, it would be illegal to have any person answer in the capacity as administrator for what the late C. L. Harmon was charged within his capacity as Chief Clerk and Boarding Officer of the Harper Customs. Moreover, C. L. Harmon having appealed from the decision rendered against him by the Circuit Court, and having died before such decision could be finalized, an administrator, even though appointed, could not prosecute such an appeal, but rather the only legal thing would be to strike the said case from the docket, for the person charged 592 LIBERIAN LAW REPORTS with having misappropriated funds having died already. “3. And also because Mr. Harmon says that the application is improper and is not justified by law, since it is the representative of a party who dies in a case pending that has the right to apply to court for the substitution of a party, and not the opposite party.” Counsel for appellant and appellee argued and submitted the case. Our statutes provide that, should a party to an action die, the action may be continued by or against his executor, administrator, or other legal representative. The law further requires that, within a year after the death of a party, the court may order substitution of the proper party; and if the substitution is not so made, the action shall be dismissed as to the deceased plaintiff, or judgment by default shall be entered against the deceased defendant. The motion for substitution may be made by the successors or representatives of the deceased party or by any party, so that the contention of the appellant in Count “3” of his resistance that it is the right of the representative of the deceased party to apply for substitution and not the opposite party is not well taken and is therefore overruled. 1956 Code, tit.6, � 100. It is the opinion of this Court that, the appellee having made application for the substitution of party, and having named A. Rollo Harmon, the father of the deceased appellant, as legal representative of his estate, the order and other record of the Monthly and Probate Court appointing the said A. Rollo Harmon as the administrator of the said estate should have been made profert with the said application ; for this Court could not act upon bare allegations. The appellant not having made a showing to the satisfaction of this Court that A. Rollo Harmon is the administrator of the deceased appellant, and hence his legal representative, the motion is denied. And it is so ordered. Motion denied.