DAWODA ZIAZE, Appellant, v. PHILIP N. CLINTON, Appellee.

MOTION TO DISMISS APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued October 19, 1965. Decided February 20, 1966. Where an appeal bond is insufficient in amount and the appellant has not applied for leave to make it sufficient, a motion to dismiss the appeal will be granted. On appeal from a judgment in an ejectment action, appellee’s motion to dismiss the appeal was granted and the appeal dismissed. Joseph F. Dennis for appellant. for appellee. MR. JUSTICE Court. SIMPSON Anthony F. Barclay delivered the opinion of the On the 26th day of April, 1963, final judgment in an action of ejectment was rendered against appellee by the Circuit Court of the Sixth Judicial Circuit, Montserrado County, sitting in its law division. Thereafter, on June 5, 1963, appellant herein, Dawoda Zaize filed an appeal bond as one of the jurisdictional steps in the perfection of his appeal. Pursuant to section 1013 of the Civil Procedure Law, this bond was duly approved by the presiding judge and made a part of the record for the appeal in the case. The appeal bond as approved was in the amount of $roo. During the October 1964 term of this Honorable Court, appellee in the person of Philip N. Clinton, by and through his counsel, the Barclay Law Firm, filed a threecount motion to dismiss the appeal and have the trial court resume jurisdiction and enforce its judgment. This mo304 LIBERIAN LAW REPORTS 305 tion as filed had, as its first legal point, the issue of the deficiency of the appeal bond which, as stated supra, was in the amount of $100, whereas the judgment of the court below was in the amount of $1,000. The second ground laid in the motion was to the effect that the bond did not appear to be approved by the trial judge, nor by any judge for that matter. And lastly, the appellee contended that the appellant had neglected and failed to pay for the preparation of the records to be forwarded to this Court. Having examined the three grounds mentioned, it is our view that the first is sufficient for an adequate disposition of this matter. Appellant has contended that an insufficient bond is not ground for dismissal under Section 1020 of the Civil Procedure Law. But after reading Count 1 of the resistance, we referred to the above-cited law and found the following. “An appeal from a court of record may, upon motion properly taken, be dismissed for the following reasons: * * * “(b) Failure to file an approved appeal bond or material defect in an appeal bond (insofar as such failure or defect is not remedied in accordance with the provision of section 1014 above).” 1956 CODE 6:1020. Recourse to Section 1014 of the Civil Procedure Law, as referred to in Section 1020 reveals the following. “Failure to file an appeal bond within the specified time or filing of an insufficient bond shall be grounds for dismissal of appeal. But an insufficient bond may be made sufficient at any time during the period before the trial court loses jurisdiction of the action. Thereafter if the appellant discovers an insufficiency in his appeal bond he may petition the appellate court for permission to make it sufficient.” 1956 CODE 6:1014. Our records do not show that any attempt has been 306 LIBERIAN LAW REPORTS made in either this Court or the court below to have the bond made sufficient irrespective of the patent defect found therein in contravention of the applicable statutory law. In the premises, we are forced to invoke the harsh application of the statute and order the dismissal of the appeal. In view of the above, the motion is hereby granted and the appeal ordered dismissed. The clerk of this Court is hereby ordered to send a mandate to the court below commanding that it resume jurisdiction and enforce its judgment. Costs of these proceedings are ruled against appellant. And it is hereby so ordered. Appeal dismissed.