AMERICAN LIFE INSURANCE COMPANY, by and thru its Administrative Manager, ROYDEE MURRAY, Petitioner/Appellant, v. PAUL T. SARSIH and HIS HONOUR J. HENRIC PEARSON, Assigned Circuit Judge, People’s Civil Law Court, Sixth Judicial Circuit, Montserrado County, Respondents/Appellees.

APPEAL FROM THE RULING OF THE CHAMBERS JUSTICE DENYING THE PETITION FOR A WRIT OF CERTIORARI.
Heard: May 5, 1986. Decided: May 30, 1986.

1. Payment of accrued costs is not a prerequisite for issuance of the writ of certiorari.
2. According to the statutes, the petitioner shall pay all the accrued costs, and he may be required to give a bond, conditioned on paying the respondent such damages as he may sustain if the writ is dismissed.
3. Under certiorari, the statute does not categorically impose the condition of prior payment of accrued costs in order for the writ to be issued, but merely requires that the petitioner pays accrued costs. The Justice therefore has discretionary power to decide whether payment of such costs should be made before or after the writ is issued.

The plaintiff/respondent instituted an action for breach of contract against American Life Insurance Company for failure to pay benefits under the policy after the death of the insured. The defendant/petitioner denied that there was an insurance contract, but did not deny plaintiff’s claim that one of defendant’s agents was in the habit of writing receipts for premium payments on bogus policies. Also, defendant did not at any time allege that plaintiff or the deceased had connived with the agent to defraud the insurance company of funds. As a result the trial judge dismissed defendant’s answer and ruled him to a bare denial of allegations in plaintiff’s complaint. Whereupon defendant excepted and announced an appeal.

Rather than pursuing the appeal, defendant petitioned the Justice in Chambers for a writ of certiorari contending, inter alia, the trial judge acted contrary to law when he attempted to forward the matter to the jury for trial without first hearing and ruling on the law issues. The Chambers Justice dismissed the petition on ground that the petitioner had failed to pay accrued costs as required by the Civil Procedure Law. Petitioner then appeal to the full Bench.

The Court had to decide whether or not payment of accrued costs by the petitioner is a prerequisite for issuance of the writ of certiorari? After carefully reviewing the relevant statutes, the Court observed that while payment of accrued costs is a prerequisite for issuance of the writ of error, the Court has some discretion when it comes to certiorari. The Court found that the Justice did not properly exercise his discretion in this matter when he dismissed the petition. The ruling of the Chambers Justice was therefore reversed and the matter returned to the trial judge to proceed with the case on its merits.

S. Edward Carlor, in association with Evelyna Cooper of the Carlor, Gordon, Hne and Teewia Law Offices appeared for petitioner/appellant. Johnnie N Lewis of the Lewis and Lewis Law Firm appeared for respondents/appellees.

MR. JUSTICE JANGABA delivered the opinion of the Court.

Paul T. Sarsih, appellee, brought an action of damages for breach of contract against the American Life Insurance Company, appellant in these proceedings. Plaintiff, now appellee, alleged below that on May 28, 1983, one Brandy Nyatoh Nyepan entered a life insurance agreement with appellant for benefit amounting to $65,000.00 for which he paid $11,672.28 as premiums for the first and second quarters and for which said appellant’s agent one John Hinneh had issued a receipt numbered 110956, thereby legally commencing the operation of the contractual agreement in full force and effect.

In its reply, appellant denied the existence of said alleged contract of insurance while contending later that the said receipt No. 110956 for premium payments purportedly issued by one of its agents, John Hinneh, whom it never denied as its agent, was fraudulent. Apparently the receipt was issued without any payments being made to the company. Appellant continued that it was the habit of said agent to issue fictitious receipts for premiums without actual payments being made to the corporation and that said conduct of this agent was reported to, and investigated by the Criminal Investigation Department (C.I.D.). Appellant further contended that even if the contract of insurance in question existed, it had lapsed for failure to meet subsequent premium obligations. However, the appellant corporation never alleged that plaintiff or the late insured, Nyepan, had in any way connived in the alleged fraud of John Hinneh.

Upon disposition of law issues, the trial judge dismissed defendant’s answer for the following reasons: That since defendant had not denied John Hinneh was its agent, or allege that plaintiff or the late Nyepan connived with the agent to commit the alleged fraud in issuing the premium receipt to deceased on the alleged policy, the defendant was liable for the acts of the agent who acted in the scope of his authority; that the payments allegedly made to the agent amounted to the principal; that the said appellant corporation having denied the truthfulness of the complaint, contradicted itself when it later set up a plea of justification. An answer that both denies the truthfulness of the complaint and sets up a plea of justification is evasive and contradictory and, hence, should be dismissed for inconsistency.

In view of the foregoing reasons, defendant’s answer was dismissed and the defendant was ruled to a bare denial of the allegations contained in the complaint for which it noted exceptions and announced an appeal.

Subsequently, however, said defendant proceeded to the Justice in Chambers on a writ of certiorari contending that the judge acted contrary to law and practice when he attempted to forward said matter for jury trial even though he had not heard and disposed of the law issues. Appellant further contended that the judge had proceeded to rule on issues of fact in the case which were properly for the jury to decide. Finally, appellant maintained that the trial judge had raised an issue by himself, contrary to law, when he ruled that defendant/appellant’s answer was contradictory and evasive and therefore should be dismissed.

Respondents in their returns supported the judge’s position on this matter and therefore prayed for dismissal of the writ of certiorari and a refusal of a peremptory writ, and to allow the matter to proceed below on the merits.

At the conclusion of the hearing in certiorari, the Chambers Justice allegedly dismissed the said petition for failure of the petitioner in certiorari to pay accrued costs as is required by law and procedure. Whereupon the petitioner appealed to this Court for review on the issue of payment of accrued costs before the writ can be issued. The two parties have been generous enough to narrow the issues on this appeal in certiorari to only one issue: Whether or not the failure to pay accrued costs prior to applying for the writ of certiorari is cause for dismissal of the alternative writ?

This question or issue has been raised in this Court several times before but heretofore there has been no clear cut ruling on it. Consequently, we want to take this opportunity in these proceedings, where it has been raised, to attempt a final resolution of said issue once and for all.

Without further delay in resolving the issue, we hold that said issue should be answered in the negative. Our civil procedure statute lays down for certiorari that:

“The petitioner shall pay all the accrued costs, and he may be required to give a bond, conditioned on paying the respondent such damages as he may sustain if the writ is dismissed.” Rev. Code 1: 16.23 (3), p. 147.

However, the same statute also lays down in the case of a writ of error that:

“As a prerequisite to issuance of the writ, the person applying for the writ of error, to be known as the plaintiff-in-error, shall be required to pay all accrued costs, and may be required to file a bond in the manner prescribed in section 51.8. Such bond shall be conditioned on paying the costs, interest and damages sustained by the opposing party if the judgment complained of is affirmed or the writ of error dismissed.” (Emphasis added). Civil Procedure Law, Rev. Code 1:16.24 (1)(d).

From the foregoing, it is clear that the statute particularly provides that as a prerequisite to issuance of the writ of error, accrued costs must be paid. However, for certiorari, the statute does not categorically impose the condition of prior payment in accrued costs before the writ can be issued, but merely lays down that a petitioner for certiorari shall pay accrued costs and may be required to file a bond to indemnify respondent were said writ dismissed.

Certainly, the statute makes a clear distinction between the two writs in terms of requirements for their issuance. In one case it specifically lays down that accrued costs must be paid before said writ can be issued, while in the other it merely says that petitioner shall pay all accrued costs without laying down a specific time for payment thereof. The former is error and the latter condition for certiorari.

It is our sincere conviction that the statute would have specifically said so if it required the payment of accrued costs in certiorari as a prerequisite for its issuance, as it has done for error. Since it has failed to do so, the reasonable idea is that it never intended payment of accrued costs in certiorari as a precondition to issuance of the writ of certiorari. And since the issuance of the writ of certiorari is a discretionary judicial obligation, it is only reasonable to conclude that the statute intended for the Justice in Chambers to use his discretion in requiring the payment thereof as a precondition for issuance of the writ. Therefore this Court cannot take the failure to meet said condition as a mandatory reason for dismissal of the writ in the absence of a prior clear directive from the Chambers Justice to do so and that petitioner had refused to do so.

The payment of accrued costs before or after issuance of the writ, as well as the issuance of the writ itself, is all in the sound discretion of the Justice in Chambers. The Justice may require the payment of accrued costs as a precondition to issuance of certiorari where, in his discretion, he believes that the application may be frivolous and amounts to a mere delay or where he finds out that if the writ is dismissed, petitioner may not be in the position to indemnify respondent. Of course his sound discretion in issuing said writ of certiorari and ordering the prior payment of accrued costs is not limited to the two conditions above, but goes as far as the sound discretion of the Chambers Justice requires.

Therefore, in view of the foregoing laws and reasoning, it is the decision of this Court that the Chambers Justice was in error for dismissing the petitioner’s petition for failure to pay accrued costs as a mandatory prerequisite to issuance of certiorari. Consequently, his ruling is hereby reversed and the Clerk of this Court is ordered to send a mandate to the lower court requiring the trial judge presiding therein to resume jurisdiction and to proceed with the merits of this matter according to the laws and practice of this jurisdiction. Costs to abide it final determination of the cause. And it is hereby so ordered.

Petition granted