CATHERINE JOHNSON, d/b/a CINDERELLA SHOE STORE, Appellant, v. BANCO DaBAHIA, S.A., Appellee.

MOTION TO DISMISS APPEAL FROM THE DEBT COURT, MONTSERRADO COUNTY. Argued December 12, 1972. Decided February 1, 1973. 1. Leaving an approved bill of exceptions with the trial judge who signed it does not constitute a filing thereof as required by statute. Z The failure to file an approved bill of exceptions with the clerk of court within ten days after rendition of judgment is a ground for dismissal of the appeal. 3. It is considered irregular for a bill of exceptions to be tendered for approval by the trial judge at his place of residence. A bill of exceptions was tendered by the appellant to the trial judge at his place of residence. He approved the bill of exceptions without inscribing the date, and the document was left with him. Some days later, after the prescribed time for filing in the clerk’s office had elapsed, the bill of exceptions was filed. A motion was brought to dismiss the appeal. Motion granted. Hall Badio for appellant. pellee. Joseph Williamson for ap- MR. JUSTICE AZANGO delivered the opinion of the Court. Appellee brought .a motion to dismiss the appeal, containing two counts, alleging late filing of the bill of exceptions and raising certain grave charges. i. Appellee says that appellant has . . . failed to file her bill of exceptions in keeping with the provisions of the statute in such cases made and provided; that is to say, the appellant did not file her bill of ex” 441 442 LIBERIAN LAW REPORTS ceptions with the clerk until fourteen ( 4) days after rendition of final judgment . . . as will more fully appear from a copy of clerk’s certificate hereto attached to form part of this motion, marked exhibit ‘A.’ “2. . . . Appellee says that appellant having failed to file her bill of exceptions within ten days after rendition of final judgment . . . attempted to cover her neglect through unrighteous means, that is to say, the appellant aforesaid importuned the trial judge to have the clerk falsify the records so as to make it appear that her bill of exceptions was filed within statutory time. Appellee took recourse to the Chamber Justice of the Supreme Court for redress of this irregularity, whereupon an investigation ensued. The records of the investigation held by the Chamber Justice of the Supreme Court are hereto attached marked exhibit `B’ to form part of this motion; which clearly shows that said bill of exceptions was in fact not filed until 17 days after rendition of final judgment.” The certificate referred to from the clerk of the debt court is set forth. “This is to certify that after careful perusal and inspection of the record in the case: “BANco DA BAHIA, S.A., of P.O. Box 279, Port Alegre, Brazil, represented by SAMUEL E. H. PELHAM, of Monrovia, Liberia, Plaintiff, “Versus “CINDERELLA SHOE STORE, of P.O. Box 249, Broad Street, represented by CATHERINE JOHNSON, of Monrovia, Liberia, Defendant. “Up to and including the issuing date of this certificate no bill of exceptions has been tendered and filed by the defendant in the above named case before the Clerk of this Court. “Given under my hand and seal of this Honorable Court this LIBERIAN LAW REPORTS 443 3oth day of July, 1971. “SimEoN W. JOHNSON, Clerk, Debt Court for Mo. Co.” A complaint of the Mississippi Law and Accounting Firm against the conduct of Hon. Sebron J. Hall of the Debt Court, Montserrado County, was made to the Justice presiding in chambers, who rendered his conclusions after conducting an investigation into the complaint. “After hearing from both sides and in view of the premise . . . the following facts were laid by the Judge and the Clerk. “1. That on the 3oth day of July, the Clerk of the Debt Court issued a certificate under seal of the Court to the effect that up to and including the issuing date of said certificate, no bill of exceptions had been tendered by the defendant and filed. We called upon the clerk to be present and he substantiated this fact. “2. The judge testified that the bill of exceptions was carried to his house by appellant’s lawyer, counsellor Broderick, and left there on the 27th day of July, and that he did not know that the Clerk had issued a certificate to the effect that there was no bill of exceptions. We then put a question to the judge as to what date the bill of exceptions was approved, and he stated that it was not approved for any date. As stated from the beginning when this case was called for hearing, the purpose of this investigation is to get the facts in the case for the bench en banco to decide. The Clerk of this Court is hereby ordered to send this matter forward to the bench en banco at its October 1971 Term including the letter of complaint, the resistance and the minutes of court to be included in the record of the appeal case. It is so ordered. “JAMES A. A. PIERRE, Chief Justice Presiding in Chambers.” To this motion a three-count resistance was filed, two 444 LIBERIAN LAW REPORTS of which we deem expedient to consider. The counts are as follows: Because Your Honors have repeatedly, as a matter of law, procedure and precedent, relied upon the records of the lower courts, prepared and certified to this Court in deciding issues raised on appeal; therefore, no extraneous or unsupported allegation of any party against a trial court’s certified genuine record can legally defeat their authenticity and credibility. Appellant contends that, an exhaustive study or perusal of the records will inform Your Honors that the bill of exceptions, which is the subject of appellee’s contention, was presented to and approved by Judge J. Sebron Hall, on July 27, 1971. This fact is written, clear and distinct and therefore cannot be defeated by any unsupported allegation. “2. The statutes on the point of bills of exception are not new or strange .. . and therefore need not be spelled out. . . . Now the bill of exceptions which forms an important part of these proceedings, clearly identifies July 27, 1971, as the date on which it was presented and signed by the trial judge, therefore admitting it within the statutory time.” Appellant’s counsel argued that according to the record of the investigation held by the Justice in chambers during the October 1971 Term of Court, no substantial evidence was given by the appellee to establish that the bill of exceptions was not signed on July 27. Instead, he contended, Judge Hall, whom the law admits is the best source of evidence, testified that counsellor Broderick did bring the bill of exceptions to his residence on July 27, but because of the tragic death of President Tubman all of the Government offices and all business houses were closed, hence he could not possibly have given it to the clerk of court for immediate filing. Such evidence, according to appellant, was never challenged or rebutted. He further contended that filing of the bill of exceptions LIBERIAN LAW REPORTS 445 in the clerk’s office is not the criterion of statutory compliance. Tendering the bill to the trial judge within ten days after the rendition of his judgment is the only requirement of the law which he must obey In passing upon the various issues raised by appellant’s counsel, we wish to observe that it is irregular to bring a bill of exceptions to the home or residence of a trial judge for his approval. The statute which was relied upon by this Court in Caulker v. Republic, [1936] LRSC 12; 5 LLR 145 (1936), provides for the time and manner in which to submit a bill of exceptions. “That from and after the passage of this act, all defendants wishing to appeal from any county courts of record, shall be allowed ten days from the rendition of final judgment to prepare and tender his bill of exceptions to the Judge of said court for his signature, which he shall attach in open court or in chambers, provided the said bill of exceptions is submitted within the aforesaid ten days.” (Emphasis supplied.) L. 1893-4, 10, � 1. If this statute had been followed, perhaps the situation leading to the events . of July 27, 1971, would not have occurred. The contention of appellant’s counsel that filing of the bill of exceptions in the office of the clerk is not the criterion for timeliness is absurd, for we have held in numerous cases that the filing of an appeal bond within time after submission thereof to the trial judge for approval is the duty of the appellant and not of the court. The need for filing also applies to a bill of exceptions, which similarly requires a timely approval by the trial judge after tender to him. The filing of a bill of exceptions with the clerk of court is, therefore, the responsibility of the appellant and not of the court. Webster v. Freeman, [1965] LRSC 5; 16 LLR 209 (1965). Again, where an appellant has neglected to file a bill of exceptions the appeal will be dismissed. King v. King, [1941] LRSC 19; 7 LLR 301 (1941) Morris v. 446 LIBERIAN LAW REPORTS Jebbah[1963] LRSC 17; , 15 LLR 278 (1963). Further when neither a bill of exceptions, nor an appeal bond, nor notice of completion of appeal has been filed within the prescribed period of time, the appeal must be dismissed. Benson v. Togba, 13 LLR 345 (1959) ; Wright v. Richards, 13 LLR 451 (196o). An appeal will be dismissed when the notice of appeal and bill of exceptions are not filed within the time limit. Brooks v. Republic, [1951] LRSC 10; 11 LLR 3 ( 1 95 1 )� Further, according to our Civil Procedure Law, “After the judge has signed the bill of exceptions, it shall be filed with the clerk of the trial court.” 1956 Code 6 :1012. Appellant’s counsel has laid great emphasis on the record of the investigation conducted by the Justice, to the effect that no substantial evidence was offered by the appellee to establish by the preponderance of evidence that the bill of exceptions was not signed on July 27. Instead, Judge Hall, whom the law recognizes to be the source of the best evidence, testified that counsellor Broderick did bring the bill of exceptions to his residence on July 27, 1971, but because of the death of President Tubman, all of the Government offices and all business houses were closed, hence he could not have possibly given it to the clerk of court for immediate filing. What better evidence could have been produced than the evidence of Judge Sebron J. Hall relating to the time and circumstances leading to his approval of the bill of exceptions? He stated unequivocally at the investigation before the Justice in chambers that when he approved the bill of exceptions he did not indicate any date of approval on it. In the face of this testimony, before the Justice, how did the date of July 27, 1971, appear on the bill of exceptions? It was not placed there by the judge, nor was it done in the presence of counsellor Broderick who brought it to the judge for approval, nor is there any indication that the clerk was ordered to do so within the LIBERIAN LAW REPORTS 447 time allowed. As a matter of practice within this jurisdiction, when a bill of exceptions is approved by the judge, he usually indicates the date of approval thereon. This was not done in the case and shows a neglect of duty and a wrong which a writ of mandamus could have cured. Should the trial judge neglect or refuse to endorse upon a bill of exceptions the date it was tendered to him for approval, the appellant may apply to the justice presiding in chambers for a mandamus to compel him to supply the omission and should he thereafter neglect or refuse, the Justice presiding in chambers may cite such judge to appear before the full bench of the Court to be punished if necessary. Rottger v. Williams, [1937] LRSC 1; 5 LLR 348 ( 1 937) We are of the opinion that since the bill of exceptions was not taken to the office of the clerk of court for filing as required by law, that renders the purported bill of exceptions invalid and of no legal effect. The clerk of court therefore was correct in issuing a certificate dated July 3o, 1971, reciting a failure to tender or file the aforesaid bill of exceptions. In accordance with the foregoing, the appeal is dismissed, with costs against appellant. It is so ordered. Motion to dismiss appeal granted.