HITLER COLEMAN, Appellant, v. REPUBLIC OF LIBERIA,

Appellee. MOTION TO DISMISS THE APPEAL. Argued April 6, 1967. Decided June 16, 1967. 1. In an appeal after having obtained the approval of the trial judge upon the bill of exceptions, the appellant must show proper filing under the statute by offering proof that the approved bill of exceptions had been timely tendered to the clerk of the trial court. A motion was brought to dismiss appeal, contending that appellant had failed to file the bill of exceptions, which had been duly approved by the trial judge, within ten days after judgment, as required by statute. The appellant claimed that the office of the clerk of the court was a great distance from the place where the judge had approved the bill of exceptions. The appeal was dismissed. The Barclay Law Firm, by T. G. Collins, for appellant. Solicitor General Nelson W. Broderick for appellee. MR. JUSTICE ROBERTS delivered the opinion of the Court. When a party to a suit who is dissatisfied with the final order, decree, or judgment, or the interlocutory rulings of an inferior court, exercises his right of appeal, thus giving this Court jurisdiction to review those errors enumerated by him, it is a displeasure to us when we are halted from doing so by some legal inhibition, resulting from carelessness, indifference, or other similar quality of the appellant. Appellant was indicted in Loff a County for the crime of grand larceny, tried and convicted, and objecting to the conduct of the trial and the final judgment of the 70 71 trial court, has entreated this Court to review that which he considers as erroneous. On April 6, 1967, during the present term of Court, when this case was called for hearing, it was noted that the State had filed a motion to dismiss the appeal. The motion briefly sets out one count which reads thus : “Because appellee says that although final judgment was rendered on the 21st day of March, 1966, yet, appellant did not file his bill of exceptions until the 1st day of April, 1966, eleven days after final judgment was rendered, contrary to law; as evidence of which appellee proferts hereto a certificate issued by the acting clerk of the trial court under the seal of the said court, to form a part of this motion. Appellee submits that the statute is mandatory and specially sets forth that the bill of exceptions must be filed within ten days after final judgment is rendered.” The Certificate referred to by appellee reads thus : “This is to certify that from the inspection and perusal of the records of my office the bill of exceptions in the case : Republic of Liberia, Plaintiff, versus Hitler Coleman, Defendant, crime : grand larceny, reached my office on the 1st day of April, 1966. “Given under my hand and Seal of this Court, this ist day of April, 1966. [ S gd.] PATRICK K. SAOKIE, Acting Clerk of aforesaid Court.” LIBERIAN LAW REPORTS Appellee cited the Criminal Procedure Law, 1956 Code 8 :380, which reads : “Dismissal of Appeal.–An appeal from a court of record may, upon motion properly taken, be dismissed for any of the following reasons only : “(a) failure to file an approved bill of exceptions within the time specified in section 373 “(b) failure to file an approval appeal bond or material defect in such bond; 72 LIBERIAN LAW REPORTS “(c) failure to have notice of appeal served on appellee ; or “(d) nonappearance of the appellant on appeal. “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.” Subdivision (c) of Section 373 referred to in subdivision (a) above, reads : “Within ten days after rendition of judgment he shall tender a bill of exceptions to the judge for his approval and signature.” Appellee also referred this Court to the Civil Procedure Law, 1956 Code 6 :30, on computation of time. Appellee firmly contended that because of the irreparable blunder of appellant, this Court should dismiss the appeal. In his attempt to defeat the motion, appellant filed a four-count affidavit, which reads thus : “1. Because appellant respectfully submits that the bill of exceptions in question was duly tendered and approved by the trial judge on the 3oth day of March, 1966, said date being the 9th day after final judgment, and that the said bill was forthwith dispatched to the office of the clerk of court in Voinjama, Loffa County, to be filed in the record of the case, and it was accordingly filed in keeping with the code. See 1956 Code 6:1020(a), 1012; Rottger V. Williams, et al.[1937] LRSC 1; , 5 L.L.R. 348 (1937) ; Caulker v. Republic of Liberia, [1936] LRSC 12; 5 L.L.R. 145 (1936). “2. And also because appellant further submits that the grounds stated in the motion to dismiss is not a statutory ground to warrant the dismissal of this case, in that the notation made by the clerk on the face of the bill, that it did not reach his office until LIBERIAN LAW REPORTS 73 the 1st day of April, 1966, is a nullity is said bill was tendered and approved within time before reaching said clerk’s office. See bill of exceptions in the record. “3. And also because appellant further submits that said motion to dismiss is fatally defective for lack of verification as required by Rule of Court. See Revised Rules of Court, Rule I I. “4. And also because appellant further submits that the motion is based on a mere technicality not affecting the merits of the case on appeal, since, indeed, it appears from the record that said bill of exceptions was not only tendered in time, but also approved by the trial judge taking into consideration the fact that the trial judge was in Monrovia, and the court in which the case was heard was in Monrovia, one of the far distance new counties where the clerk resides, and which distance appellant had to travel and reach late in the night. Said application should, therefore, be denied as being contrary to the spirit of the Supreme Court.” From counts one, two, and four of the answering affidavit it is very clear that appellant is of the opinion that tendering a bill of exceptions and having it approved is sufficient to sustain the appeal, and having it filed within ten days is not a statutory requirement, hence, not sufficient to cause dismissal of an appeal. The first two citations offered by appellant from our Liberian Code of Laws, even though they referred to the Civil Procedure Law, yet being similar to our Criminal Procedure Law, seem to rule in favor of appellee and against him. That appellant seems to have a misunderstanding of the statutes controlling timeliness of appeals and their dismissal, when they are tardy, is very obvious when he cites Caulker v. Republic supra, where the Court held that all bills of exceptions must be tendered to the trial judge for approval within ten days after final judgment and all 74 LIBERIAN LAW REPORTS appeal bonds must be approved and the costs of court paid within sixty days after judgment or the appeal will be dismissed. But appellant struck a very important point when he referred this Court to Rottger v. Williams, et al., supra, in which the ruling was that a bill of exceptions need not necessarily be approved within ten days after final judgment, provided it can be satisfactorily established that it was tendered within ten days after said final judgment. Similarly, appellant contends that his bill of exceptions was tendered and approved within the statutory time and was dispatched to the clerk of the court accordingly, but because of the distance between the office of the clerk in Voinjama and Monrovia, where the bill of exceptions was approved, appellant could not have filed the bill of exceptions within ten days after judgment, as required. The Court regards this point as important for it has affirmed in the past and very recently in Int. Trust Co. of Liberia, etc., v. W eah, etc.[1964] LRSC 13; , 15 L.L:R. 568 (1964), the language in Rottger v. Williams, et al., supra at p. 351 : “It appears to us that if it can be proven by a registered letter receipt or otherwise that the bill of exceptions was indeed tendered to the judge of the trial court within ten days, then the date of the judge’s approval does not matter.” There is no showing or satisfactory indication that the bill of exceptions after having been tendered and approved was timely dispatched to the clerk of the court. During the argument of this case, several questions were put to appellant’s counsel to ascertain whether he had any such certificate or any positive evidence to convince the court that, indeed, he dispatched the bill of exceptions within the statutory time. These questions proved fruitless, since appellant was most evasive in his answers and finally admitted that he had no such proof. How can this Court legally sustain the allegation that appellant dispatched the bill of exceptions within statutory time? LIBERIAN LAW REPORTS 75 We again say that it gives us no pleasure to dismiss appeals, for we are very aware that many and varied are the errors committed during the trial of cases in the courts below, and we are always eager to review and correct those errors. But when we are prevailed upon by the filing of a motion to dismiss the appeal on grounds laid down in our statutes, and which we very vocally support in our opinions, we have no alternative but to dismiss the appeal. The grounds of the motion by the appellee to dismiss the appeal being sound, and in conformity with law and the statutes controlling, the appeal is hereby dismissed. And the lower court is ordered to resume jurisdiction and enforce its judgment. And it is hereby so ordered. Motion granted. Appeal dismissed.