JOSEPH G. WHITFIELD, Appellant, v. NAJIB SAAB, Manager of SAAB BROTHERS, Lebanese Merchants Transacting Business in Liberia, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, GRAND BASSA COUNTY. Argued November 8, 1960. Decided December 16, 1960. Where an appellant has failed to issue a notice of appeal the appeal will be dismissed. On appeal from a judgment in an action of debt, appellee’s motion to dismiss was granted. No appearance for appellant. for appellee. Lawrence A. Morgan MR. JUSTICE WARDSWORTH delivered the opinion of the Court. At the call of the above-entitled cause of action, the parties herein not being residents of Montserrado County, the clerk of this Court was ordered to inform said parties of the assignment of said cause for hearing on October 13, 196o, by means of radiogram. In reply thereto, plaintiff-appellee informed the Court through the marshal that he had received the notice of the assignment of this cause, and that his interest in said matter was being represented by Counsellor Lawrence A. Morgan. On the other hand, appellant Whitfield failed and neglected to acknowledge receipt of the notice of assignment of his appeal case, nor did he appear in person or by proxy. The Court, having exhausted the means at its disposal in serving notice on the parties as to the assignment of this cause, had no alternative but to enter upon the said matter with a view of a final settlement thereof. 176 LIBERIAN LAW REPORTS According to the records in this case, appellee Saab instituted an action of debt on June 26, 1959, for recovery of an alleged balance due on account in the sum of $165.io, against the present appellant as defendant, before James Bryant, Associate Magistrate for Grand Bassa County. On July 26, 1958 the aforesaid associate magistrate entered judgment for plaintiff Saab, to which defendant excepted and perfected an appeal before the Circuit Court of the Second Judicial Circuit, Grand Bassa County. The matter was called for and heard by the assigned circuit judge, who affirmed the judgment of the aforesaid associate magistrate, to which judgment the defendant excepted and appealed his cause to this Court for review and final adjudication. At the call of this matter for hearing, appellee submitted a motion to dismiss the appeal, which reads, in its body, as follows : “Appellant has failed to issue a notice of appeal, a vital step necessary to perfect his appeal, notwithstanding the mandatory requirement of the statute that a party desiring to remove his cause to the Supreme Court upon appeal shall perfect his appeal within sixty days of the date of the rendition of final judgment against him by the court below by filing a signed bill of exceptions and approved appeal bond in the office of the clerk and issuing and serving on appellee a notice of appeal within sixty days of the date of rendition of final judgment. The said appellant has ignored and violated this provision of the statute. That is to say, although judgment was rendered against appellant on December 8, 1958, a period of more than one year and ten months, said appellant has failed to issue a notice of appeal and serve the same upon appellee and thereby perfect his appeal, as appears more fully by certificate of the clerk of this Honorable Court hereto annexed and made a part of this motion. For this fatal neglect and violation of the statute, LIBERIAN LAW REPORTS 177 appellee prays a dismissal of the appeal with costs against appellant.” Buttressing the above-quoted motion to dismiss the appeal is a certificate over the signature of the chief clerk of this Court, which reads in its body as follows : “This is to certify that a notice of appeal is not included in the records of the above-entitled cause as certified to this Court under seal of the clerk of the Circuit Court of the Second Judicial Circuit, Grand Bassa County.” The statute controlling dismissal of an appeal provides, inter alia, that an appeal from a court of record may, upon motion properly taken, be dismissed for non-appearance of the appellant on appeal or negligent failure to have notice served on the appellee. 1956 Code, tit. 6, � 102o. It is evident that the negligent failure of appellant to have issued a notice of appeal is an incurable defect, and that this Court is thereby deprived of the right to exercise jurisdiction over the appellee with the view of inquiring into the merits of appellant’s appeal. In view of the foregoing, appellee’s motion is well founded in law, and is therefore sustained with costs against appellant. And it is hereby so ordered. Dismissed.