ELIZABETH ADORKOR, Appellant, v. K. JEFFERIES ADORKOR, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Argued April 16, 1936. Decided April 24, 1936.

1. It is the duty of any party desiring to appeal to submit his bill of exceptions to the trial judge for approval within ten days after final judgment.

2. Should said judge have left his circuit, proof that it is deposited within a post office of this Republic within ten days will be sufficient evidence of its having been submitted within time.

3. Should the judge refuse to approve same, the remedy is to apply to the Justice presiding in Chambers for a writ of mandamus to compel him to so do, or show cause why.

4. The appeal bond must be approved within sixty days after final judgment by the trial judge.

On motion to dismiss, on jurisdictional grounds, an appeal from a judgment in an action for divorce, judgment affirmed.

P. Gbe Wolo for appellant. Anthony Barclay for appellee.

MR. JUSTICE DOSSEN delivered the opinion of the Court.

This case comes up upon appeal from the Circuit Court of the First Judicial Circuit, Montserrado County, heard and decided at its May term , 1935. Elizabeth Adorkor, appellant, defendant below, n t being satisfied with the several rulings, opinions, verdict, and final judgment of the trial court, excepted and appealed to this Court upon a bill of exceptions. But, at the call of the case before this Court, appellee, plaintiff below, offered a motion to dismiss for want of legal jurisdiction, which motion is as follows, to wit :

“1. Because appellee says that there is no legal bill of exceptions before this Honourable Court as the law requires, in that, the purported bill of exceptions submitted with the records in this case was not approved by the trial Circuit Judge, which must under the Statute Laws of this Republic governing appeals be done so as to confer jurisdiction upon the appellate court.

“2. And also because appellee says that the appeal bond filed in the lower court and submitted to this Court is irregular, defective and bad, in that, said appeal bond was not submitted to His Honour E. Himie Shannon the trial Circuit Judge in keeping with statute laws, but rather, contrary to law, it was submitted to His Honour Nete Sie Brownell, Resident Judge, Montserrado County, who had nothing to do with the trial, for his approval, contrary to law and this appellee is ready to prove.

“3. And also because the costs of the court below have not been paid in keeping with the statute on appeal.”

We would remark that the Court does not favor deciding causes before it upon motions to dismiss, but would rather go into the merits of the case, and decide same according to the law and evidence. But, so long as litigants fail and neglect to surround their causes with the safeguards of the law, so as to secure them against any serious miscarriage, and thereby pave the way to the securing of the great benefits which they seek to obtain under the law, and which can only be enjoyed by them when the legal prerequisites of the law are fully met, we are bound to entertain and sustain any motion or motions in which said prerequisites are wanting.

Our statute controlling appeals declares inter alia that “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. The appellant shall in all cases sign the bill of exceptions before submitting the same to the said Judge for his signature. Appeal bonds are to be approved by the Court from which the appeal is taken, within sixty days after final judgment. . . .” L. 1893-94, 10, § 1.

Section 425 of our Revised Statutes appears to us to put the responsibility of presenting said bill of exceptions in even more emphatic terms as follows:

“It shall be the duty of the party appealing from any decision or judgment of any court of record or judge thereof, which does not appear upon the face of the ordinary proceedings in the case, to cause such decision or judgment, with the evidence and prayer or motion upon which it is founded, to be reduced to writing and to have the same signed by the judge from whose decision or judgment the appeal is taken.” Rev. Stat. 495, § 425.

By inspection of the records sent up in this cause, we observe that this very important prerequisite of the law was not met, as the law in such case made and provided required. Counsellor for appellant in trying to support the incurable omission made by appellant in this particular, tried very strenuously to show to the Court that the trial judge in this cause left his place of assignment before the expiration of the time allowed for the performance of this act and therefore appellant was unable to have said bill of exceptions presented to, and signed by, the trial judge as the law directs.

The Court is not convinced that the actions of the trial judge in this particular were sufficient to defeat the appellant, as appellant was not without a remedy. For, had she herself sent her bill of exceptions to the trial judge by registered post within the time prescribed by law, instead of merely filing same in the office of the clerk, the post office date stamp on the said letter would have been accepted by us as the date it was tendered to the trial judge and had he neglected and refused to sign same, appellant had a further remedy; she could have thereupon applied to the Justice of this Court presiding in chambers for a writ of mandamus to compel him to sign same or show cause why, which act on the part of appellant would have had the favorable consideration of this Court; but failing and omitting so to do amounts to a waiver of said right and a bar to this Court’s going into the merits of this cause, no matter how much we might be disposed so to do; for we are bound to uphold and support the decision handed down in the case Anderson v. Dennis, decided January term[1872] LRSC 2; , 1872, 1 L.L.R. 55, motion to dismiss appeal[1872] LRSC 6; , 1 L.L.R. 505; Anderson v. McLain, decided January[1868] LRSC 1; , 1868, 1 L.L.R. 44; Mellon and Banks v. Republic, decided April term[1934] LRSC 13; , 1934, 4. L.L.R. 115, I Lib. New Ann. Ser. 117.

Passing on to count two of the motion, since the issue set forth and contained therein has not been specifically passed upon by this Court we are glad of the opportunity of doing so now ; as we have said above, the statute law governing appeals, as found in the Acts of the Legislature approved January 13, 1894, requires the performance of certain prerequisites which must be performed by every person, including appellant, who may desire to take out an appeal to this Court. The said act is mandatory and must be strictly observed and followed by appellant; the relevant part thereof (section ) reads as follows, to wit: “Appeal bonds are to be approved by the Court from which the appeal is taken, within sixty days after final judgment . . .”; the word “court,” here mentioned, means the trial court, that is, the judge of the trial court.

By an inspection of the records filed in this case we find that this very important prerequisite of the law was not met ; that the document purporting to be an appeal bond was not submitted to, nor approved by, the judge of the trial court, His Honor E. Himie Shannon, as the law directs ; but to the Resident judge, His Honor Nete Sie Brownell. Counsel for appellant contended most strenuously that under the present circuit system any Circuit Judge is eligible to approve of an appeal bond ; that that portion of the Act approved January 13, 1894, is repealed by the Act approved December 11, 1912, and hence the said bond was legally approved and should receive the favorable consideration of the Court.

We regret our inability to agree with appellant in his contention in this respect. We are strongly of the opinion that neither that portion, nor any portion of the aforesaid Act, is repealed by the said Act of 1912 ; hence his contention is, in the opinion of the majority of the bench, without legal foundation and cannot receive the favorable consideration of this Court. So long as the said Act of the Legislature approved January 13, 1894, remains upon the statute book of this country unrepealed it shall be considered the law controlling appeals to this Court, and especially so since this Court has not the power nor the authority to alter, enlarge, amend, or repeal statutes.

Counts 1 and 2 of appellee’s motion to dismiss the appeal for want of jurisdiction being so pertinent and well supported by law and the records, we do not think it necessary to make further comment.

It is therefore the opinion of this Court that appellee’s motion to dismiss for want of jurisdiction should be entertained, and sustained by this Court, the appeal dismissed, the court below directed to resume jurisdiction and execute its judgment, and appellant ruled to pay all legal .costs; and it is hereby so ordered.

Affirmed

MR. CHIEF JUSTICE GRIMES read and filed the following concurring opinion.

I find myself so much at variance with the conclusions reached by my learned colleagues on the second count of the motion to dismiss in this case, that I feel it my duty to make this record of the reasons why I have dissented from their opinion on this point.

The amendatory statute of appeals passed in 1893 to 1894, by which we are presently guided, provides inter alia that every appellant shall

The 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. . . . Appeal bonds are to be approved by the Court from which the appeal is taken, within sixty days after final judgment. . . .” L. 1893-94, 10, § 1.

The difference of opinion which has arisen between us is whether or not before the words “the court” in the sentence “appeal bonds are to be approved by the court” supra in dealing with the subject of appeal bonds, is to be read the words “the judge of” as in that part of the enactment dealing with bills of exceptions, or “a judge of” as I contend is impliedly understood.

My reasons for holding that the indefinite article “a” is understood are the two following:

There is a very material difference in the use and purpose of a bill of exceptions on the one hand, and an appeal bond on the other. With regard to the former, when a case is appealed, the appeal is, in effect, a complaint, charging the trial judge with having committed sundry errors, each one of which is set out in a different count in the bill of exceptions. He will, of course, have had notice during the trial that the party so excepting intended appealing from each such ruling of his to the appellate court, and having embodied said complaint in the form of a bill of exceptions it is but just and fair to him that said document should be submitted to him, and to him alone, in order that he might be apprised in advance of the grounds of complaint, and be enabled thereby to make any observations thereon, as in practice is often done, by the notations which a judge makes on the bill of exceptions in the record. There is no reason to suppose that any other trial judge would have given the same rulings as his colleague, nor, not knowing the reason in the mind of said colleague who actually tried the case why he had reached such a conclusion that he would be able to protect his colleague by appropriate notations as his colleague would be able to do. And so firmly am I of that opinion that I am inclined to believe that if the trial judge died, or became otherwise incapacitated within the days within which a bill of exceptions should be tendered to him, the remedy would not be to tender the bill of exceptions to another Circuit Judge, but to bring the case up to this jurisdiction upon a writ of error ; and that following that procedure in such a case would not violate the opinion of this Court in the case Wodawodey v. Kartiehn and George, 4 L.L.R. 102, i Lib. Ann. Ser. 105.

On the other hand the approval of an appeal bond is merely a ministerial act on the part of the judge. And the main points to be considered by the judge in approving same is whether or not the bond contains the necessary statutory conditions, and the sureties are sufficiently able financially to indemnify the appellee within the limits of the amount fixed. These prerequisites, in my opinion, any Circuit judge with a knowledge of the conditions prescribed by the statute on appeals, which he is already supposed to know, and with the aid of the assessment list of the district, can see have been met, and thereby approve of said bond.

My second reason for thus differing with my colleagues is: that in the Act supplementary to that establishing the Circuit Courts the preamble recites that it

“was not intended to inconvenience the Judges thereof by a perpetual absence of Nine Months in each year from their resident Circuit, and,

“Whereas the regular terms of the said Court should be more definitely fixed with reference to the day of commencement of each regular term,

“Therefore it is enacted by the Senate and House of Representatives of the Republic of Liberia in Legislature assembled:

“Sec. 1. That the Judges of the Circuit Court shall hold the regular Jury Session thereof under assignment of the Chief Justice of the Supreme Court as now provided for by law, together with all other matters falling within the Jurisdiction of the said Circuit Court, which shall have been legally entered for trial upon the Calendar before the meeting of each regular session; provided however, that all other matters not requiring a Jury or which shall not have been entered for trial as aforesaid shall be disposed of by the resident Judge in the Circuit where the matter is pending; whenever said matter requires a hearing upon the application of either party thereto.

“Sec. 2. Ten days after adjournment of any regular session of the Circuit Court shall commence the next session of said Court and all matters not requiring a Jury may be heard and disposed of upon application as provided for in section One of this Act before the meeting of the regular Jury Session.” Acts of Legislature of Liberia, 1911-12, 47, preamble and § 1, 2.

In addition to the foregoing, section 2 of an Act Amendatory to the Acts relating to the judiciary, approved October 22, 1914 as above provides :

“That section second of the Act amendatory to the Judiciary passed and approved January 11 1913, be so altered and amended as to read, ‘That the said Assigned Judges shall remain in their respective places of assignment until the full term of the Court is ended according to law, and ten days thereafter. He or they shall not leave the business of that term to be completed by the resident Judges under a penalty of suspension from office upon complaint of the Attorney General of the Republic of Liberia or any interested person or persons.’ ” L. 1914, 50, § 2.

It is a familiar canon of construction that later laws repeal only such prior ones as are irreconcilably inconsistent with the former, and in the absence of negative terms both shall have concurrent force and efficacy. Blackstone, Commentaries, *89; Brumskine v. Victor, [1913] LRSC 11; 2 L.L.R. 123, Lib. Semi-Ann. Ser. 17 (1913).

Hence, inasmuch as all the laws are presumed to be passed by legislators who are presumed to know the laws in vogue, since indeed Blackstone, in the introduction to his Commentaries, observed : “And how unbecoming must it appear in a member of the legislature to vote for a new law, who is utterly ignorant of the old! what kind of interpretation can he be enabled to give, who is a stranger to the text upon which he comments!” (op. cit. *9) the Circuit Court system must be presumed to have been intended to fit in with that of the amendatory statute of appeals except in any respect where there was apparent an irreconcilable inconsistency between the new Circuit Court laws and the former statute of appeals.

If then it was intended that a judge should remain in a Circuit, or retain jurisdiction thereof, until all of the business shall have been completed, why did the law fix the period of ten days, and ten days only, for him to retain jurisdiction in the circuit instead of sixty days, which sixty days are by the aforesaid Act of 1893-94, and our own decision of today in the cases of Caulker v. Republic, Russ v. Republic, Yang , v. Republic, Yancy and DeLaney v. Republic, the outside limit within which an appeal should be completed ?

It appears to my mind from the context of the law hereinbefore cited that the Legislature themselves intended that the bill of exceptions should be approved by the trial judge, and him only, but that the appeal bond may be approved by any Circuit Judge for the time being within the jurisdiction where the case was tried, and particularly by the judge resident in the circuit. It is, therefore, my opinion that the second point of the motion should have been denied, and all obiter dicta heretofore emanating from us on this point should be regarded as obiter dicta only, and not as carefully considered opinions on the point.

In spite of the foregoing I have nevertheless signed the judgment dismissing the appeal, because I am fully in accord with the views of my colleagues that the neglect on the part of appellant, within ten days, to tender her bill of exceptions to the trial judge for his signature was an irreparable error, that as a result of said neglect one of the most vital jurisdictional steps in effecting an appeal was not taken, and that upon that ground, and, in my opinion, that ground alone, we are unable to hear this appeal.