MATILDA A. RICHARDS, Appellant, v. S. DAVID COLEMAN, Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Decided December 13, 1935.
1. The court may set aside the verdict of the jury whenever it shall be proved that the debt or damages found by the jury are greatly too much or too little when compared with the evidence in the case.
2. An objection that the evidence does not support the verdict cannot be considered when made for the first time on appeal.
3. Nor will an objection that the verdict is inadequate or excessive avail a party on appeal who had not raised the point at the trial, in many jurisdictions by an application for a new trial.
4. An exception is an objection taken to the decision of the trial court upon a matter of law, and a notice that the party thereby preserves for the consideration of the appellate court a ruling deemed erroneous.
5. Without an exception an objection, no matter what its intrinsic merit, is lost.
6. There is always a Justice presiding in the chambers of the Supreme Court one of the duties of whom is upon proper application made to order errors inadvertently made in a record corrected, or missing parts of a record sent up.
The appellant, plaintiff below, brought an action of debt against the appellee in the Circuit Court of the First Judicial Circuit, Montserrado County. A verdict was returned in favor of the plaintiff, who claims that it was inadequate and has appealed to this Court. Judgment affirmed.
P. Gbe Wolo for appellant. S. David Coleman for himself.
MR. JUSTICE RUSSELL delivered the opinion of the Court.
During the May term of the Circuit Court of the First Judicial Circuit, Montserrado County, in the year of our Lord nineteen hundred twenty-nine, Matilda A. Richards, then plaintiff, instituted an action of debt against S. David Coleman, defendant, for the recovery of the sum of six hundred sixty-five dollars and fifty-five cents or £138 13s. 1 1/2 d. which she claimed defendant owed her.
The plaintiff in count twentieth of her bill of exceptions alleges: “That on the 13th day of December 1934, the Petty Jury returned a verdict deducting sixty-nine pounds six shillings and two and half pence from the Note of hand of one hundred and thirty-eight pounds thirteen shillings and one and half pence to which verdict the plaintiff excepted.”
After a careful examination of the records in this case, we discover that this count of the plaintiff’s bill of exceptions is not supported by the records of the case in that no exception to the verdict was taken and noted upon the records, and we are compelled to reaffirm the doctrine set out by this Court in the case Varne, Vombo, Ginda and Momora Singby v. Republic, i L.L.R. 242 (1893), more recently confirmed in In re A. B. Ricks, contempt proceedings, as contained in our New Annual Series, No. 1, page 62, paragraph 1[1934] LRSC 7; , 4 L.L.R. 58 (1934) ; which all go to show that where the points set forth in the bill of exceptions are not supported by the records of the case, the court will not entertain or consider said points.
The statute of Liberia governing the procedure in all cases after verdict of the petty jury is mandatory and ought to be strictly followed. This statute provides that:
“The court may set aside the verdict or decision of the jury, and order a new trial, whenever it shall be proved that . . . the verdict shall be manifestly against the evidence, the law or the legal instructions of the court, or if the debt or damages found by the jury, be greatly too much or too little, when compared with the evidence in the cause.” Liberian Statutes (Old Blue Book), ch. VII, p. 48, § 16.
This principle so enunciated by our statutes is also upheld in the Encyclopaedia of Pleading and Practice, volume 8, page 281, sub-sections 2 and 3, which read:
“An objection that the evidence does not support the verdict cannot be considered when made for the first time on appeal.
“So the objection that a verdict is inadequate, or that it is excessive, cannot be raised for the first time on appeal. The objection must be raised at the trial. In some jurisdictions, to make such an error available, the party should make it a ground for granting a new trial, and the objection should show that it is based on that ground.”
Our own statute provides:
“On the rendition of a verdict, if any party excepts thereto on the ground that it is contrary to the law or the evidence, or is against the weight of evidence, he must before the jury is discharged enter his exception on the minutes of the Clerk of the Court. Before doing so he may cause the Clerk to ask each juror as to whether or not such verdict is his own, and he shall give notice of motion for a new trial.” i Rev. Stat. § 396.
The plaintiff’s failure to except to the verdict of the petit jury when brought in open court, and which would have afforded her the opportunity of filing a motion for a new trial if she was dissatisfied with said verdict, is a flagrant error which in our opinion cannot be cured by a bill of exceptions as is now attempted to be done in this case before this Court. This Court cannot but reiterate the principle laid down in the case Phillips v. Republic, when it said inter alia:
“‘An exception, as the term is ordinarily used, is an objection taken to the decision of the trial court upon a matter of law, and is a notice that the party taking it preserves for the consideration of the appellate court a ruling deemed erroneous. Its office is altogether different from that of an objection. While an objection always precedes a ruling, the exception immediately follows it. It is the second step of the proceedings taken to obtain a review of error committed by the trial court, and is the method by which an objection is saved. In the absence of an exception an objection is lost, no matter what its intrinsic merits are. . . . 4 L.L.R. II, 14, I Lib. New Ann. Ser. 1 ; 8 Ency. Pl. and Prac. 157.
Counsellor Wolo contended during the arguments that there was an hiatus in the minutes, and that we should read into said hiatus that the counsel who represented the case in behalf of appellant in the court below did take an exception to the verdict. The Court on that point has to remind the appellant that in the case Johnson, Turpin and Dunbar v. Roberts, decided at our January term, 1861, I L.L.R. 8, this Court decided that a party appealing should see that all legal requisites are completed. There is always a Justice presiding in our chambers who will, if properly applied to, issue the necessary order to a court below to correct any error of that kind inadvertently made by ordering the abridged record sent up or other necessary act done.
This Court regrets to have to say, therefore, that appellant having neglected to take advantage of the rights secured her at the proper time, we are powerless to aid her. It is our opinion therefore that the judgment of the court below should be affirmed and the appellant ruled to pay all costs from the filing of the bill of exceptions to the conclusion of this appeal, and that all costs which had accrued before the filing of the said bill of exceptions should be paid by appellee; and it is so ordered.
Affirmed.