TEAH DEBO NANCY, Appellant, v. THOMAS B. CURRY, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued October 31, 1960. Decided December 16, 1960. 1. A notice of appeal which is not served and returned within the statutorily prescribed period of time is void. 2. The statute prescribing the period of time within which an appeal must be taken is mandatory. 3. Appellants are responsible for perfecting their appeals ; the failure of a clerk of court to perform a duty in connection therewith is not an acceptable excuse. 4. Where notice of appeal was served on the appellee seven days after expiration of the statutorily prescribed period of time, a motion to dismiss the appeal will be granted. On appeal from a judgment upon an award of arbitrators in an ejectment action, a motion to dismiss the appeal was granted. E. Winfred Smallwood for appellant. lins and 0. Natty B. Davis for appellee. T. Gyibli Col- MR. Court. JUSTICE MITCHELL delivered the opinion of the From the record on appeal before this Court it is apparent that both the appellant and the appellee bought land from one Rachel Bank. The plaintiff below, now appellee bought a tract of land situated in the Halfway Farmland Area in the City of Monrovia, consisting of two town lots in Block Number i i, and his deed therefor was executed on August 19, 1953. The defendant below, now appellant, bought one town lot from the same grantor, situated in the same area and in the same Block Number II but with a different boundary description. The boundary of the land deeded to appellant was de- LIBERIAN LAW REPORTS 153 scribed as beginning from the northwest corner of Keke Nuwa’s property. The boundary of the land deeded to appellee was described as beginning from the northwest corner of the property of one Sarah Horace; and the deed of the said piece of property was executed on February 7, 1955. On October 5, 1954 Thomas B. Curry, the appellee in this case, sold one of his two lots to Chief Joe Joe of the Vonjima District, Western Province, retaining one lot from this particular tract of land. Yet, when the appellee decided to institute his suit of ejectment on April 18, 1958 –quite three and a half years after he had disposed of one of the lots–he claimed title to both lots, and included both in his complaint, which complaint for the benefit of this opinion, we shall hereunder quote as follows: “Thomas B. Curry plaintiff, complains that he was possessed of a certain lot or parcel of land of the following description, as will more fully appear by copy of the title deed herewith filed and marked Exhibit `A’ and forming a part of this complaint, the same being a part of Block Number 11, situated in the Halfway Farmland Area, and bounded and described as follows : `Commencing at the northwest corner of Keke Nuwa’s two-half-lot parcel of land marked by a concrete monument and running parallel with it, south 54 degrees, east 132 feet, thence north 36 degrees, east 165 feet; thence north 54 degrees, west 132 feet; then south 36 degrees, west 165 feet, parallel with the eastern side of Johnson Street to the place of beginning, and contains two town lots or one-half acre of land, and no more.’ “And that the said Teah Debo Nancy, defendant, unlawfully detains the said parcel of land from the plaintiff. All which the plaintiff is ready to prove. Wherefore plaintiff prays judgment for the recovery of said parcel of land from the defendant.” 154 LIBERIAN LAW REPORTS The defendant joined issue in the case, and pleadings travelled as far as the surrejoinder. Law issues were disposed of, and the court below ruled the case to jury trial on the complaint and certain counts in the answer and reply. Both parties thereafter stipulated and made submission to the court for arbitration, which request was granted and arbitrators duly nominated and appointed. Between the points of the submission to arbitration and the court’s judgment upon the award of the arbitrators, according to the records before us, there seem to be many irregularities which this Court has not been able to consider because of the motion to dismiss the appeal that has been filed by the appellee. Appellant, being dissatisfied with the judgment rendered against her, took an appeal before us for further hearing. Were it not for the motion referred to, which serves as a supersedeas, we would now address our attention to all of the records in the case ; but because of that one important fact, however regular or irregular the proceedings were, we are barred from the privilege of entering into the merits of this appeal. In passing, however, we want it to be well understood that this Court expects counsel to superintend and supervise cases to the very last point in seeing that all necessary antecedent legal steps are fully met. We want it to be further known that, although this Court is at all times anxious and willing to do all that is necessary to be done in impartially disposing of all matters before us, yet we shall not and cannot do for parties in litigation that which they fail to do for themselves through negligence of counsel or otherwise. Those who fail to avail themselves of their legal rights must bear the consequences. When this case was called for hearing the appellee’s motion to dismiss was read. In this motion appellee states that the appeal was not completed until 67 days after the rendition of the judgment in the court below; that is to say, although the appeal bond and bill of excep- LIBERIAN LAW REPORTS 155 tions were filed within the sixty-day period of time specified by law, the notice of appeal, which should also be issued and served within the same period of time, was not served and returned until seven days thereafter, excluding the date of service; and therefore, the appeal should be dismissed. Appellant, in resisting the motion alleged, in substance, as follows : The requirement of the statute was fully met by the service of notice of appeal and its returns, because the law does not require that the notice of the completion of the appeal should be issued, served and returned within the sixty-day period of time contemplated by the law for the completion of an appeal. Rather, the law only requires the bill of exceptions to be filed within ten days, and the appeal bond within sixty days after the rendition of final judgment; and since both appellant’s bill of exceptions and bond were filed in conformity with law, the delay in the issuance, service and return of the notice was not appellant’s responsibility. Moreover, it being a duty imposed on the clerk of the court from which the appeal is taken to issue the notice of appeal forthwith after the filing of appellant’s appeal bond, and the clerk having been paid to perform this duty, the wilful neglect of the clerk in this regard should not work prejudice to the appellant’s interest. Those were the grounds of the motion and the grounds of appellant’s objections which appellant’s counsel strongly argued to be substantial and meritorious. But this Court entertains the feeling that it would have been more honorable for him to have submitted his grounds without argument rather than belabor the Court because indulgence was given him. Whilst it is true that it is the service and return of the notice of appeal which gives this Court jurisdiction over the parties, yet when the said notice is not served and re- 156 LIBERIAN LAW REPORTS turned within the time prescribed by law for the completion of the appeal, it becomes void. It is also true that it is a duty imposed upon the clerk to issue the notice; but still, it is the responsibility of the party appealing to so surround his appeal with the safeguards of the law as to prevent his opponent from moving for the dismissal of his cause for failure to do that which is incumbent upon him to do within the prescribed time. In McAuley v. Laland, [1894] LRSC 1; 1 L.L.R. 254 (1894), this Court said : “It is needless for this Court to enter into extensive argument to establish the well-known requirements of the law, as it should be obvious to every reflecting mind that an appeal is not complete until the appellee is duly summoned, which summons places him under the jurisdiction of the court to which the appeal is taken; therefore, the summons or notice forms a very integral part of an appeal and should be served within the time allowed for the completion of the appeal.” To our minds, the above-quoted decision of this Court completely settles the question of appellant’s contention ; but let us go a little further to see whether it is confirmed by any subsequent decision of this Court. We quote the following syllabi : “The service of a notice of appeal upon the appellee by the ministerial officer of the trial court completes the appeal and places appellee under the jurisdiction of the appellate court. When not completed within the statutory time, this Court will dismiss said appeal for want of jurisdiction. “The statute relating to the time within which appeals must be taken is imperative and includes everything necessary to be done to bring the appellee properly before the appellate court.” Morris v. Republic, [1934] LRSC 16; 4 L.L.R. 125 (1934), Syllabi 2 and 3. The notice of appeal having been served on the appellee quite seven days after the statutory time for the LIBERIAN LAW REPORTS 157 completion of the appeal by reason of the negligence of appellant’s counsel whose duty it was to supervise this case . toiscmplen,hosidrpnfthCou that the defect is fatal. Therefore the appellee’s motion to dismiss the appeal is granted and the appeal is hereby ordered dismissed with costs against the appellant; and the clerk of this Court is hereby ordered to send a mandate to the court below ordering it to resume jurisdiction and enforce its judgment. Appeal dismissed.