CATHERINE UREY-HOLDER, et al., Appellants, v. JOSEPH C. DENNIS, et al., Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued November 14, 1960. Decided December 16, 1960. 1. A variance in direction of a notice of appeal is not sufficient ground for dismissal. 2. An appeal can be dismissed only on grounds specified by statute, 1956 Code, tit. 6, � 1020. On appeal from a judgment in an action on an injunction bond, appellees moved to dismiss for lack of jurisdiction on the ground that the appeal had not been completed by reason of defective direction in the notice of appeal. The Supreme Court denied the motion to dismiss. Henries Law Firm for appellants. for appellees. T. Gyibli Collins MR. CHIEF JUSTICE WILSON delivered the opinion of the Court.* In this case, as in many cases which have come up for review at this term of Court, appellees filed a motion to dismiss the appeal on the ground of failure on the part of appellants to serve legal notice of the completion of their appeal, which alone, as appellees contended, would give this Court jurisdiction over said appeal. To indicate the issue raised by appellees in their motion, we quote the full text of said motion as follows : “And now come Joseph C. Dennis, et al., appellees in the above-entitled case, and respectfully move this Court to dismiss the appeal taken in said case and * Mr. Justice Harris was absent because of illness and took no part in this case. Mr. Justice Wardsworth recused himself because of personal interest and took no part in this case. LIBERIAN LAW REPORTS 169 affirm the judgment of the court below, in that the record of appeal certified to this appellate Court in said case clearly shows that the purported notice of appeal is not directed to said appellees to inform them to appear and defend against said appeal, as required by law. Wherefore appellees pray that the appeal be dismissed for lack of said indispensable requisite to transfer trial jurisdiction to the appellate court. For reliance see: 1956 Code, tit. 6, � 1013; Adai v. Jackson, [1914] LRSC 7; 2 L.L.R. 171 (1914).” Countering this motion, appellants filed the following resistance : “Appellants, in resisting the purported motion to dismiss the appeal filed by appellees in this case, respectfully pray this Court to deny said motion for the following legal reasons, to wit : “Appellants submit that the notice of appeal should be directed to the sheriff, commanding him to notify appellee of the completion of the appeal, and summoning him to appear and defend. Moreover, our Supreme Court has said : ‘Nevertheless, inasmuch as ours is the privilege of settling the procedure of all subordinate courts, we desire to point out that the procedure heretofore followed does not appear to us to be in all respects in accordance with the spirit of the law. Hence from and after cases docketed for this session of the Court, it is our opinion that all notices of appeal shall be directed to the sheriff of the court from which the appeal is taken instead of to the appellee, and by said sheriff served upon the appellee whenever he is within reach. If, however, the appellee is not within the bailiwick of the said sheriff, upon a proper endorsement to said effect by the sheriff, the notice may be served upon any attorney to the record for appellee provided no notice of change of said attorney shall have been made a matter of record in the trial court.’ Jantzen v. Williams, [1934] LRSC 35; 4 L.L.R. 231, 233 170 LIBERIAN LAW REPORTS (1934). Wherefore appellants pray this Honorable Court to deny said motion and proceed to hear this case on its merits.” The law cited on both sides is a progressive pronouncement by this Court in its decisions from the year 1914 up to late as December, 1934, and statutory provisions enacted by the Legislature of Liberia as the controlling law up to 1960, which we shall quote later in this opinion. The decision on which appellees principally rely in support of their motion to dismiss is Adai v. Jackson, [1914] LRSC 7; 2 L.L.R. 171 (1914) . Syllabus I of said case reads as follows : “A notice of appeal should be directed to the appellee by the clerk of the trial court, and served and returned by the ministerial officer of said court.” In the body of the above-cited opinion, at 2 L.L.R. 172-73, this Court said : “As to the first point, we are of the opinion that in so important a matter, as an act which the statute requires to be performed, in order to complete the appeal and to transfer the jurisdiction to the appellate court, such as the service of a notice of appeal, the said act should be performed by the ministerial officer of the court in which the case was tried and determined which in the case at bar is the sheriff of Sinoe County.” Appellants relied upon the following sections of the syllabus of Jantzen v. Williams, [1934] LRSC 35; 4 L.L.R. 231 (1934) : it ‘. This Court has the privilege of settling the procedure of subordinate courts. “2. The notice of appeal should be directed to the sheriff of the county, commanding him to notify appellee of the completion of the appeal, and summoning him to appear and defend. “3. Said notice should be personally served upon the appellee; but in the event appellee is without the bailiwick of the sheriff, or is otherwise inaccessible, the service upon one who has been, and LIBERIAN LAW REPORTS 171 continues to be, an attorney of record will be sufficient.” Because there appeared no material variance or contradiction between the two cases cited, supra, counsellor for appellee was pressed from this bench for clarification as to the main point he intended to invoke as a departure by appellant in the perfection of the appeal for which this Court was under obligation to grant a dismissal, especially when he acknowledged the service of a notice of appeal, and that same had been duly returned by the ministerial officer of the trial court, as is laid down in both the abovecited decisions. Counsel contended that the service thus performed was irregular and illegal in that said notice was misdirected, or to use his own words, not directed at all. Let us now take recourse to the notice that was issued and served, same being included in the record certified to us in this case : and pleadings herein the above appellants hereby appeal to the Supreme Court of Liberia at its October, 196o, term, from the several rulings and final judgment of His Honor, John A. Dennis, assigned Circuit Judge, presiding over the March, 196o, term of this court as rendered on May io, 196o, and filed in the office of the clerk of this Court on May 14, 196o. “You Are Hereby Commanded to Appear and Defend the Same “Notice of Appeal. “Take notice: That upon all the papers “Republic of Liberia to Urias N. Dixon, Esquire, Sheriff for Montserrado County, Greetings : “You are hereby commanded to receive this notice of appeal issued in triplicate, and to serve the original by reading to appellees and leaving a copy with each of the said appellees, respectively, and return the original to my office with your official returns endorsed on the back hereof immediately after same is served as to the 172 LIBERIAN LAW REPORTS manner of its service. And have you there this notice of appeal. “Given under my hand and seal of court in the City of Monrovia this 8th day of July, 196o. [Sgd.] WILLIAM H. KENNEDY Clerk of the Civil Law Court [SEAL] “Sheriff Returns “I have duly served the within notice of appeal by leaving a copy of the within notice of appeal with Counsellor Collins of counsel for Joseph Dennis, etc., plaintiff; and make my returns dated this 8th day of July, 196o. [ Sgd.] URIAS DIXON, Sheriff , Mo. Co.” It is clear from the above-quoted notice and return thereon made by the ministerial officer of the Circuit Court of the Sixth Judicial Circuit, that the requirements laid down in the said two decisions of this Court were complied with except, as was alleged, and contended by appellee’s counsel, that said notice is not specific in directing same to the appellee. What, then, could be the purpose and object of the service on appellee of a notice of the completion of an appeal? The only logical reason that could fairly be assigned is to give sufficient information of this service ; hence the rule which makes service of the original notice after issuance by the clerk and return by the ministerial officer mandatory, whilst the service of a copy on appellant’s adversary by appellant is merely a confirmation of the service already performed by the court. This second service, besides lacking a mandatory requirement, does not seem sufficient to warrant a, dismissal of an appeal where the record reveals that service was made and the returns of the ministerial officer indicative of such service duly filed, as in the instant case. Appellees made an effort to depart from the point raised LIBERIAN LAW REPORTS 173 in the motion by contending that the service of a copy of the notice of appeal by appellants on appellees, the adversaries, was necessary to confer jurisdiction of this Court in the case; but as this point is not contained in the motion to dismiss, arguments pointing to this new issue cannot have the consideration of this Court. The only issue, therefore, that is a subject of review by us, is the claim of failure to direct said notice to the appellees. Recourse to the notice issued by the clerk of the trial court and served and returned by the ministerial officer thereof, as is fully recited, supra, in this opinion, does upon its face state the name of the plaintiffs and defendants, the title of the action and the description of the precept as a notice of appeal, directing the sheriff to read and leave a copy of said notice with appellees, and commanding them to appear and defend the same. This, according to the returns of the ministerial officer of the trial court, was done. In Brownell v. Brownell, [1936] LRSC 3; 5 L.L.R. 76 (1936), Syllabus 2 and Syllabus 3 read as follows : “2. It is the service of the notice of appeal which alone gives the appellate court jurisdiction over the appellee. The only legal evidence of such service is the “3. official return of the proper ministerial officer.” In the body of the above-quoted decision, this Court explicitly followed its prior decision in Jantzen v. Williams, supra. In conclusion we quote from the controlling statute which specifically provides that the following grounds are the only grounds upon which a civil appeal may be dismissed : “( a) Failure to file an approved bill of exceptions within the time specified in section 1012 above; “(b) Failure to file an approved appeal bond or material defect in an appeal bond. . . . ” (c ) Non-appearance of the appellant on appeal ; or 174 LIBERIAN LAW REPORTS ” (d) Negligent failure to have notice served on the appellee.” 1956 Code, tit. 6, � 1020. Since it does not appear from the record certified to us that any of these provisions has been violated, it would be exceeding our authority to dismiss said appeal because of the technical construction placed on said notice by appellees regarding the absence of any specific direction in said notice to appellees–an interpretation that is not responsive to the form and substance employed by the clerk in issuing said notice, and the return which clearly states, and this has not been denied by appellees, that said notice was served on Counsellor T. Gyibli Collins who was and continues to be of counsel to appellees. Because all the jurisdictional steps to the perfection of an appeal provided under our statutes and rules of this Court were taken by appellants, the motion to dismiss said appeal is hereby denied with costs against the appellees. And it is so ordered. Motion denied.