ADOLPH N. ADJAVOS, Appellant, v. MESSRS. FREY & ZUSLI, a Commercial Firm, by FREDERICK FREY, Agent, Appellee.

APPEAL FROM DECREE RENDERED ON BILL IN EQUITY.

Argued December 5, 1934. Decided December 21, 1934.

1. A trial judge errs who, on deciding in favor of plaintiff the points of law raised in his reply, proceeds to render a final judgment in favor of said plaintiff without first hearing evidence in support of the complaint.

2. Where the proceedings have not properly been conducted and no certain definite and clear-cut issue has been presented, the ends of justice sometimes demand that the case be remanded with instructions that the parties be ordered to replead.

Appeal from decree rendered on a bill in equity. Case remanded for new trial, and repleading also ordered.

C. H. Taylor, Anthony Barclay, and A. Dash Wilson for appellant. William V. S. Tubman and H. Lafayette Harmon for appellee.

MR. JUSTICE GRIGSBY delivered the opinion of the Court.

When the above entitled case came on for hearing, it soon became clear that because of flagrant errors committed by His Honor, the late Aaron J. George, the Circuit Judge who presided at the trial in the court below, this Court would be compelled to remand the case to be tried according to law. The errors to which we refer, the subject of complaint in the eighth and tenth counts of the bill of exceptions, are due to the fact that when the pleadings were argued before the said judge, he not only dismissed the answer upon the point raised in the reply, but simultaneously, in the same ruling, and without having heard one scintilla of evidence, gave a final decree upon the merits of the cause. This Court was at a loss to know upon what facts he predicated such a decree, and still more so how, in view of the fact that plaintiff in his bill claims an amount of one hundred eighty pounds sterling, the Judge had reached a conclusion that plaintiff was entitled to recover one hundred eighty-nine pounds sterling, and all costs.

That the said final decree was illegal, and that this Court would not be able to do otherwise than reverse the judgment and order the case properly tried, was frankly admitted by both the counsel representing appellant as well as appellee. The only point upon which the counsel on both sides appeared to differ was whether or not this Court would permit them to amend their pleadings in the court below as they frankly admitted that the complaint, the answer, and every other pleading were unscientifically drafted, and hence presented for the consideration of the court a confused mass of irregularities, rather than definite, certain and clear-cut issues. The Court, in view of these omissions, gave them the opportunity of filing stipulations in order that we might give an effect to such stipulations in the opinion we might hand down. To our greatest surprise, however, and in spite of the fact that all of the lawyers on both sides had appeared to have agreed to this course at the bar, the documents filed, purporting to be the said stipulations, are not such, because there is lacking in them any agreement or mutuality, each side having filed something different to the other. More than that, one reading the documents so filed cannot fail to reach the conclusion that the parties wish to draw from us in advance indications how they should correct the errors that they had made in the pleadings filed. It is a source of surprise to us that counsel of such standing would attempt to draw us into forestalling ourselves upon a matter which they have admitted is not yet ripe for our consideration.

We have therefore decided to reiterate in substance the opinion expressed in the case Pelham v. Pelham, [1934] LRSC 6; 4 L.L.R. 54, i Lib. New Ann. Ser. 57, to the effect that the case should be remanded with instructions to permit the plaintiff, having complied with the statute laws governing amendments of pleadings, to withdraw the complaint on record and file a new one, other pleadings to follow in like manner; that inasmuch as mistakes appear to have been made by both parties in the respective pleadings, each should pay his own costs; but the government tax fee and the costs of the officers of the court should be equally divided between the two parties; and it is so ordered.

Case remanded.

MR. JUSTICE DOSSEN having been retained as counsel for appellee at the time these proceedings were instituted, announced his disqualification at the call of the case, and has taken no part in the consideration or decision thereof.