LIBERIA TRADING CORPORATION, Appellant, v. M. J. ABI-JAOUDI, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued March 21, 1960. Decided May 6, 1960. 1. Res judicata will bar a subsequent hearing when and where the subject matter in issue was passed upon and a ruling or judgment rendered thereon by a court of competent authority, but where a plea in bar prevented a review of the merits in the case, res judicata will not apply. 2. A judgment is on the merits when it constitutes a decision as to the respective rights and liabilities of the parties based on the ultimate facts or state of facts disclosed by the pleadings or evidence, or both, and upon which the right of recovery depends, irrespective of formal, technical, or dilatory objections or contentions. 3. A judgment on the pleadings which determines the merits of the controversy is bar to another action for the same cause. In such case res judicata will apply. 4. A judgment dismissing a suit on account of a technical defect, irregularity, or informality is not on the merits and is therefore no bar to subsequent actions. 5. Pleadings which violate the statute controlling withdrawals and amendments of pleadings are properly dismissed when raised in an adversary’s pleadings and passed upon at a hearing. 6. Where facts and circumstances occurring after a prior judgment furnish a new basis for the claims and defenses of the parties, the former judgment cannot be pleaded in bar of a second action; but additional facts or grounds of recovery which existed at the time of the first suit, and which might have been urged therein, cannot sustain a new suit. 7. Withdrawal of an appeal and payment of costs is positive indication of the appellant’s submission to and compliance with the judgment appealed from, and confirms it as a conclusive adjudication of the issues between the parties. 8. Payment of costs is always by the losing party ; and when costs are paid in a subordinate court without review by the appellate court of the ruling or judgment, the losing party thereby admits legal justification for the said ruling or judgment. On appeal from a judgment dismissing the complaint in an action of debt, judgment affirmed. MR. JUSTICE PIERRE delivered the opinion of the COurt. * * Mr. Justice Harris was absent because of illness and took no part in this case. 44 LIBERIAN LAW REPORTS According to the records this action of debt was instituted on October zo, 1954, by the Liberia Trading Corporation as plaintiff in the court below. It was brought against the appellee herein, M. J. Abi-Jaoudi, a Lebanese merchant, as the defendant, and was intended to recover the sum of $98,581.78, which the plaintiffs claimed the defendant owed them and had failed to pay. For some unknown reason–unknown because the records are silent–the plaintiffs withdrew their complaint after it had been filed, and amended and refiled it on October 25, 1954, five days after the filing of the original complaint. We might mention that the Henries Law Firm represented the plaintiffs, and Counsellor Lawrence A. Morgan represented the defendant. Pleadings in the case, having progressed up to the surrejoinder, were rested on November 27, 1954. On March 21, 1956, that is to say, sixteen months later, the plaintiffs again withdrew their case, this time reserving the right to renew it. The records do not show why these several withdrawals were made, or why the case in which the issues on both sides had been so completely pleaded was not brought to trial. However, it was a legal right of the plaintiffs to withdraw their case if they elected, and the courts cannot question the wisdom of their act in doing so. It would be well to remember, nevertheless, that with this second withdrawal, having already once amended their complaint, they had exercised their legal right under the statute which requires that: “At any time before trial any party may, insofar as it does not unreasonably delay trial, once amend any particular pleading made by him by: (a) Withdrawing it and all subsequent pleadings made by him; Paying all costs incurred by the opposing party in (b) filing and serving pleadings subsequent to the withdrawn pleading; and ( c ) Substituting an amended pleading, to which the LIBERIAN LAW REPORTS 45 opposing party may make a responsive pleading in the same manner as he did to the withdrawn pleading.” 1956 Code, tit. 6, � 32o. On April 14., 1956, the plaintiffs again filed suit against the defendant; but this time their complaint sought to recover only a portion of the original amount sued for. That is to say, whereas the previous complaints had named several amounts comprising the sum of $98,581.78 sued for in 1954, this new suit was instituted to recover only $75,000, being the balance due on the produce account, which was one of the several amounts included among the former bills of particulars. As in the suit immediately preceding this new action, pleadings were allowed to progress as far as the surrejoinder. It was this case which came on for hearing before Judge John A. Dennis, assigned to preside over the December, 1956, term of the Circuit Court of the Sixth Judicial Circuit, Montserrado County; and it was from the ruling which he entered, dismissing the same, that appeal was taken by the plaintiffs to the Supreme Court. We quote hereunder the relevant portion of the judge’s ruling, showing the legal grounds upon which he dismissed the case, because those grounds were to become the subject of review and contention later on. The judge ruled as follows : “On October 22, 1954, the plaintiffs appeared through counsel in the office of Justice of the Peace Robert B. Anthony of Montserrado County, and swore out an amended complaint which was filed in the office of the clerk of this court on October 25, 1954. “The pleadings in this suit progressed as far as the surrejoinder, filed in the office of the clerk on November 27, 1954, by the plaintiffs herein. “The records further reveal the following notice of withdrawal : ” ‘MR. CLERK : ” ‘Please take notice and spread upon the records of the above-named court that plaintiffs in this action 46 LIBERIAN LAW REPORTS have, on this 20th day of March, 1956, withdrawn the above cause of action with the right of filing a renewed action. ” ‘Filed March 21, 1956. [Sgd.] W. H. KENNEDY, Clerk of Court.’ “From the foregoing, it is evident that the facts and circumstances charged by the defendant in his answer exist. “It is now necessary to refer to the law controlling amendments of pleadings. Section 304 of the Revised Statutes provides : “‘Amendment or Withdrawal by Party. In the event that no delay in the trial of an action is caused thereby, any pleading may be once amended or withdrawn by the party filing it, and a new one filed in its stead, at any time before the case is ready for trial; but he must pay all costs incurred up to the time of such amendment or withdrawal.’ ” ‘A plaintiff may once amend his complaint or withdraw it and file a new one at any time before the case is ready for trial.’ Harmon v. Woodin & Company, [1919] LRSC 3; 2 L.L.R. 334 (1919), Syllabus I. “Plaintiff contends, using his own words, that he filed a ‘brand new action.’ It is necessary to state in connection with the averment of the plaintiff that he filed a brand new action, that his notice of withdrawal does not support this contention ; for the said action was withdrawn with the right of filing a renewed action, which plaintiff accordingly conformed to. The former action involves the same parties, and is entitled an action of debt. The latter is between the selfsame parties and is also entitled an action of debt, with the identical bills of particulars and other written documents showing negotiations and adjustments in accounts, thereby reducing the amount from ninety- LIBERIAN LAW REPORTS 47 eight-odd thousand dollars to seventy-five-odd thousand dollars. “In view of the facts and circumstances enumerated herein, and since the said plaintiff once amended his said complaint, and once withdrew the same and reentered it, it is our ruling that, if the plaintiff desired to enter a new action, he should have withdrawn his case reserving the right to reenter same. But when he amended the same, as the records disclose, it was necessary legally to have done so in accordance with the statutory requirement that such amendment or withdrawal cause no delay in the trial of the case. “It is necessary to remember that any amendment should be allowed that forwards the purpose of deciding the merits of the issues in controversy between the parties, provided such amendment will not prejudice the rights of the opposite party. “Plaintiff having commenced both the former and latter suits by attachment proceedings, thus imposing the obligation of a bond upon the defendant and his sureties, the intervening period of quite sixteen calendar months before a withdrawal of the said action and the renewal thereof, after having once already amended the same, is in strict contravention of the statutes quoted herein. “In consequence thereof, it is our ruling that the said action is hereby dismissed with costs against the plaintiff.” Despite the fact that the appeal taken from this ruling on December 3o, 1956, would have afforded the plaintiffs an opportunity to bring their case before the Supreme Court for review–which should have been the objective of any conscientious litigant who sought to recover such a large sum of money and lost in the lower court–not a single one of the several jurisdictional steps which alone could have given the Supreme Court jurisdiction over the 48 LIBERIAN LAW REPORTS cause was taken by the appealing party. Instead, appellent submitted to and complied with the judgment by filing a withdrawal of the appeal on January 4, 1957, and also paid the entire costs. What effect this was to have is discussed later in this opinion. One would think that, in keeping with the procedure known in this jurisdiction, based upon the statute quoted above, the action of debt filed to recover the sums of money named in the several bills of particulars filed with the former complaints, had been given every advantage known to our law and allowed by our practice, and that the withdrawal of the appeal and compliance with the judgment were intended as acknowledgment of the legal correctness of the position taken by the judge in his ruling. But that was not to be the case, as subsequent events were to show. On January 12, 1957, the plaintiffs again, and for yet another time, brought an action of debt against the defendant, this time including two of the bills omitted in the action brought on April 14, 1956, but which had been included in the two previous complaints, and which aforesaid action of April, 1956, Judge Dennis had dismissed. Thus, the amount the present action was brought to recover was made up of the $75,000 produce account, the $6,154.06 direct import account, and the $213.75 goods account. Again the pleadings progressed as far as the surrejoinder and rested. On January 3o, 1958, Judge Joseph Findley, presiding by assignment over the Circuit Court of the Sixth Judicial Circuit, Montserrado County, called the case, heard arguments on the issues of law and, as Judge Dennis had done a year previously, dismissed the case with costs against the plaintiffs. It is froth this ruling of Judge Findley that the plaintiffs have again announced appeal and have now come up on a bill of exceptions containing five counts for review by this Court of last resort. Before we proceed to pass upon the merits of the issues LIBERIAN LAW REPORTS 49 raised and urged in the brief and records before us, it might be well, and we think it is indeed appropriate and timely, that we make some reference to what must of necessity be regarded as either gross professional negligence or deliberate and intentional unprofessional conduct on the part of counsel representing the plaintiffs in the court below, appellants in the Supreme Court. In addition to what has been related hereinabove concerning the several withdrawals and amendments effected in the court below, we experienced an even more disturbing example of unethical behavior when the case was called for hearing in the Supreme Court. Recall that this case was appealed from a ruling handed down on January 3o, 1958, and was filed to be heard in the Supreme Court in the March term of that year. On March 5, 1960, two years after the docketed date, it was with 29 other cases publicly bulletined for hearing during the present term. On March 17, which was the third day’s session, Counsellor Robert Arango of the Henries Law Firm, appearing in another case also bulletined for the term, was informed by the bench that his client’s action of debt case was assigned for hearing at 9 o’clock in the morning of March 24, which was four days later. But, in addition to this verbal notice given to one of the members of the firm in the Supreme Court, written notices of assignment were prepared by the clerk and served by a deputy marshal upon counsel for both sides on March 18; and the deputy marshal has made returns to that effect. Notwithstanding all of these regular and procedural steps, when the case was eventually called on the morning of March 21, in keeping with the assignment, not only had the appellants’ counsel failed to file a brief in keeping with Rule VII and the practice of this Court, but not a single lawyer from the firm, who were of record and had therefore been announced of counsel for the party, either appeared to defend or notified the Court of any reasons why they could not so appear. A more frivolous and 50 LIBERIAN LAW REPORTS irresponsible attitude toward a client’s interest has never been known to be displayed by any lawyer in our courts. We cannot but look with alarm and grave concern upon this unprofessional happening because it seeks to strike at the very vitals of our judiciary system, and could seriously affect the reputation of our trials. It is not sufficient that litigants have legal representation in our courts ; but we must insist that the said representation be of the best professional quality and of the highest ethical character. To return to the issues in the case. In Counts “1” and “5” of the bill of exceptions, the appellants have contended that the judge erred in his conclusion that, under the principle of res judicata, the action should have been dismissed. They have urged that res judicata could only have barred a hearing of the cause before Judge Findley if the merits of the case had been reviewed and a judgment rendered thereon by Judge Dennis. We find ourselves in agreement with this contention of the appellants. Res judicata will bar a subsequent hearing when and where the matter in issue has been passed upon and a judgment rendered thereon by a court of competent authority. But where pleas in bar prevent a review of the merits of the subject matter in the case, res judicata will not apply. “A former judgment will not operate as a bar to a subsequent suit upon the same cause of action unless the proceedings and judgment in the first case involved or afforded full legal opportunity for an investigation and determination of the merits of the suit. But although a judgment may have been rendered on technical grounds or by dismissal, or generally not on the merits, yet the admissions made by a party in his pleadings in that suit may be received as evidence against him, although not conclusive, in a subsequent action between the same parties. . . . “A judgment is on the merits when it amounts to a decision as to the respective rights and liabilities of the parties, based on the ultimate fact or state of facts LIBERIAN LAW REPORTS 51 disclosed by the pleadings or evidence, or both, and upon which the right of recovery depends, irrespective of formal, technical, or dilatory objections or contentions. If the case is brought to an issue, heard upon evidence submitted pro and con, and decided by the verdict of a jury or the findings of a court, the judgment rendered is upon the merits.” 2 CYC. 1131-32 Judgments. “A judgment on the pleadings, if it determines the merits of the controversy, as distinguished from the merits of the pleadings attacked, is a bar to another action for the same cause, a motion for such judgment being in the nature of a demurrer to the pleading of the adverse party; and the fact that the pleader designates it as a motion to dismiss is immaterial.” 5o C.J.S. 81-82 Judgments � 647. Whilst it is true that one of the objectives of res judicata is to end litigation, it is nevertheless also true that the issue litigated must have been alloWed to be presented in a judicial hearing, and a judgment rendered thereon to terminate the litigation. Unless and until this is the case, res judicata cannot be claimed to bar the reinstitution of a suit either in law or in equity. “The doctrine of res judicata as stated in many cases is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. To adopt the language of the English court in announcing the doctrine in an early case, which has been frequently repeated by the courts, the judgment of a court of concurrent jurisdiction directly upon the point, is as a plea in bar, or as evidence, conclusive between the same parties upon the same matter directly in question in another court.” 3o AM. JuR. 371 Judgments � 324. In Phelps v. Williams, [1928] LRSC 14; 3 L.L.R. 54, 57 (1928), wherein 52 LIBERIAN LAW REPORTS the plaintiff sought to eject the defendant from a piece of property previously adjudged not to have been his, Mr. Chief Justice Johnson, speaking for this Court, said : “And just here we will premise that, where a matter has been decided by this Court it becomes res judicata, if there is a concurrence of the following conditions, viz. : Identity in the thing sued for; identity of the cause of action ; and identity of persons and of parties to the action. Such judgments are conclusive upon the parties, and no party can recover in a subsequent suit. It does not matter whether or not the judgment is pleaded.” The merits of the instant action of debt not having been gone into in either of the previous cases filed and withdrawn, or in the cause dismissed by Judge Dennis, res judicata could not bar the subsequent hearing by Judge Findley. “A judgment dismissing a suit on account of any technical defect, irregularity, or informality is not on the merits and is therefore no bar to subsequent actions. This rule applies, for example, to the failure of plaintiff to perform any facts, or comply with any conditions, preliminary to his rights to institute the action, and it also applies to any irregularity in bringing the suit, or any technical objection occurring in the course of the proceeding.” 23 CYC. 1146 Judgments. It is very plain, therefore, that if the suit was dismissed, and it does not matter upon what grounds, so long as the subject matter was not judicially determined, the doctrine of res judicata did not bar the reinstitution of the suit. Appellant has contended in Count “4” of the bill of exceptions that the judge was in error to have dismissed the case in view of appellant’s having set up in the complaint the fraudulent act of the defendant in issuing two checks together intended to settle $8,900 of indebtedness to the plaintiff, when defendant’s account in the bank did not cover either of the two checks. Appellant contends that LIBERIAN LAW REPORTS 53 this fraudulent act is sufficient indication of the defendant’s calculated intention to evade payment of the debt due to the plaintiff. There is no doubt that criminal fraud is apparent where it can be shown that a debtor issues a check in payment of his creditor for which there are no funds in his account to cover ; and we are of the opinion that this fact, if allowed to have been proven at the trial, might have gone a long way in establishing the merits of the plaintiff’s case. But where circumstances over which the cour.t had no control prevented the proper presentation of the issue, the judge was without choice in ignoring this averment of the complaint in his ruling. We come now to consider Counts “2” and “3” of the bill of exceptions, the two counts which, in our opinion, embody the main issues upon which the decision in this case will turn. For the benefit of this opinion we will quote the two counts herein. They read word for word as follows : And also because plaintiff contends that Your Honor would seem to be under an erroneous impression when your ruling dismissing plaintiff’s action is based upon the ground that an already determined action of debt has been reinstituted. A review of the records in the case ruled on by Judge Dennis will reveal that the instant case is by no means the same. As such, the law controlling refiling will not and cannot apply. It is therefore error for Your Honor to have dismissed plaintiff’s case without allowing an opportunity for the merits of the case to be gone into. “3. And also because plaintiff still further contends that Judge Dennis dismissed plaintiff’s former case on the ground that his having amended the complaint and withdrawn the action was intended to delay trial. Not only is the instant case brought to recover a different amount, but its institution is in no manner related to the case dis” 2. 54 LIBERIAN LAW REPORTS missed by Judge Dennis on the ground of alleged intended delay. As such it was error on Your Honor’s part to have dismissed plaintiff’s action on the ground stated in your ruling.” The view as expressed in these two counts would seem to be a little out of focus with the related circumstances of the case, and it does not seem to harmonize with the statute quoted earlier in this opinion controlling withdrawals and amendments on pleadings. Our statute provides that a plaintiff may once amend his complaint, or withdraw it and file a new one, at any time before the case is ready for trial. The statute also provides that the amendment after withdrawal must cause no delay in the trial and determination of the case. From the time that this case was first filed in 1954, up to the appealed ruling in January, 1958, more than three years had elapsed ; and it appears from the records before us that this delay was due to no act or negligence on the defendant’s part. In this connection it might be well to remember plaintiff’s several withdrawals of the case during this period. The law has always frowned upon delays in the hearing and determination of causes. “Justice delayed is justice denied” is a maxim which is glibly recited and is frequently, but apparently meaninglessly, used by lawyers today. This case was first filed, as we have said, in October, 1954. In the same year the plaintiffs withdrew, amended and refiled their complaint, thus completely satisfying the statutory provision in respect to amendments of pleadings as far as this case was concerned. Nevertheless, in March, 1956, sixteen months later, they formally withdrew their refiled case ; and April 14, 1956, they again refiled it, this time using only one of the amounts making up the total sued for in the two previous complaints. In the first and second complaints the amounts sued for on separate statements of accounts amounted to $98,581.78; in the third complaint only the produce account ($75,000) is demanded. We do not think that any reasonable mind can consistently contend that, having used these amounts LIBERIAN LAW REPORTS 55 as the basis of the suits in 1954, using any one of them subsequently, either with or without each other, but in the same form of action and with the same parties, could possibly constitute a different or new case which would not fall within the provision of the statute controlling withdrawal and amendment of complaints. “Generally, where facts and conditions occurring after the prior judgment furnish a new basis for the claims and defenses of the parties, as where there has been a change of law, the former judgment cannot be pleaded in bar of a second action; but additional facts or grounds of recovery which existed at the time of the first suit and which might have been urged therein do not permit the bringing of a new suit.” 50 C. J.S. 92 Judgments � 65o. How much more, then, when the amounts added to make what plaintiffs regard as a new case before Judge Findley not only existed when Judge Dennis rendered judgment in 1956, but had been used in the first two filings in 1954? The plaintiff’s contention on this point does not therefore seem to be legally tenable. The plaintiff’s disagreement with Judge Dennis’s dismissal of the case, and with the grounds upon which he based his ruling, was clearly indicated by the appeal announced from the said ruling. If the plaintiff had not been dissatisfied with the ruling dismissing the case, he would not have taken exceptions to it or appealed from it. Therefore the test of the legal correctness of the said ruling was left to be made by the appellate Court to which the appeal sought to refer the ruling for review; that is to say, whether or not the judge was legally correct to have dismissed the case on the ground that the statute controlling the withdrawal and amendment of pleadings had been violated and therefore constituted sufficient ground for dismissal; and also that the repeated withdrawals and amendments over and above the requirement of the statute constituted delays forbidden by law. It is unfortunate that these grounds forming the basis of the Dennis ruling 56 LIBERIAN LAW REPORTS cannot be reviewed in this hearing, because plaintiff withdrew the appeal which would have given us legal authority to pass upon it; in other words, the merits or demerits of that ruling are not before us. The withdrawal of appeal and payment of costs is a positive indication of submission to and compliance with the judgment appealed from, and thereby finalizes the said judgment in respect to the issues which it concluded. The payment of costs is always by the losing party in refund of the expenses incurred by his adversary in maintaining his action ; and when paid in a subordinate court without allowing the appellate court to review the ruling or judgment which ordered it our courts have always held that the said losing party thereby admits legal justification of the said ruling. It is therefore our opinion that the plaintiff’s act of withdrawing the appeal from Judge Dennis’s ruling and paying the costs incident to the suit was an acceptance of the legal validity of the ruling, and in that respect has constituted the said ruling of Judge Dennis as a bar to any other review of the same issues which it has concluded. However, in the ruling which Judge Findley handed down in January, 1958, and from which this appeal is taken, he reviewed the Dennis ruling in its entirety; he reviewed the pleadings on both sides, and examined the law upon which the parties relied ; and he arrived at the same conclusions as his colleague, Judge Dennis, with respect to the issues on which the case was dismissed. Having ourselves reviewed those issues as they have been set down in the bill of exceptions, in relation to the law as it applied to them, and having also taken into consideration the statute controlling the issues raised in the pleadings of the case, we find ourselves in agreement with the position taken by the trial court in dismissing the plaintiff’s case. The judgment of the court below is therefore affirmed, with costs against the appellant. Affirmed.