HORATIO N. BAKER, Petitioner, v. GEORGE D. N. MORRIS, Respondent.
PETITION TO ENFORCE JUDGMENT OF CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Argued October 31, November 21, 1949. Decided December 16, 1949.
Where defendant excepts to an adverse judgment, prays an appeal, and files an approved bill of exceptions and a legal appeal bond, thus depriving the lower court of jurisdiction, but defendant does not have the records sent to the appellate court, the appellate court will grant a petition by the successful party below to have the judgment of the lower court enforced.
Plaintiff, petitioner herein, successfully sued defendant, respondent herein, in the circuit court. Respondent completed his appeal but failed to have the record sent up to this Court. After the completion of the appeal respondent made a partial payment to petitioner. On petition to this Court to enforce the judgment in the circuit court,
petition granted and respondent to be credited with amount paid petitioner.
MR. JUSTICE SHANNON delivered the opinion of the Court.
In the Circuit Court for the Sixth Judicial Circuit, Montserrado County, a case was decided on January 17, 1949, entitled Action of Damages, in which Horatio N. Baker, petitioner in these proceedings, was plaintiff and George D. N. Morris, respondent herein, was defendant. Judgment was rendered for petitioner and respondent excepted and prayed an appeal to this Court at its October term, 1949.
It appears that, notwithstanding the filing of an approved bill of exceptions and an appeal bond as required by law, respondent neglected to have prepared and forwarded to this Court the records in this case to enable us to hear and determine same. Because of this neglect which petitioner considered against his interest and also because of the loss of jurisdiction by the lower court as a result of the filing of an approved appeal bond, petitioner felt himself with no alternative but to petition this Court for an order to “enforce judgment of the lower court.” Respondent, resisting the application, submitted two counts, the first attacking the legal sufficiency of the application on the ground that he was not furnished with copies of the documents proffered with the said application so as to have given him sufficient notice under the law, and the second alleging that the neglect or failure of the clerk of the lower court to have prepared and forwarded to this Court the appeal records in the case was not attributable to any default or dereliction on his part in that said clerk demanded and received from him two dollars and fifty cents for this work. Unfortunately, however, despite the fact that respondent attacked petitioner’s failure to furnish respondent with copies of the documents petitioner proffered herein, respondent wantonly failed to file a certificate from the said clerk that he had paid two dollars and fifty cents as alleged or to assign some reason for his failure to do so.
In the face of the above, there would have been no reason not to grant the application without comment if a certain situation had not crept up during the hearing of the cause which has made it necessary to comment thereon. Counsellor Collins for the petitioner, during his argument before us, brought to the notice of the Court the argument that respondent should not be encouraged in his efforts to resist the satisfaction of the judgment against him because the said respondent had virtually waived his appeal in that, since the entry of the judgment and his taking the appeal and filing both an approved bill of exceptions and an appeal bond, respondent has made approaches to petitioner to pay the judgment independently of the court and also has made tender of partial payment, which the petitioner has accepted. Respondent conceded this, disagreeing only as to the actual amount tendered and accepted.
We are of the opinion that this kind of practice should be frowned upon and deprecated, and it is for this reason that we have decided to comment thereon. The object of an action at law is primarily to seek redress for wrong. Therefore, when a party goes to court for such redress, he should not at any stage of the proceedings take upon himself the personal responsibility of having the claimed wrong redressed or adjusted without the intervention of the court. Such an action, in addition to having the tendency of undermining the smooth administration of justice, also subverts that dignity and authority that should always attach to the court. When the approach was made by the respondent for the satisfaction of the judgment, which would have been a virtual abandonment of the appeal, the petitioner should have allowed every process towards satisfaction of said judgment to be conducted under the aegis of the court. This would have necessitated a notice from the respondent of the abandonment of his appeal. It is unfair to the court and has a tendency to undermine its dignity for parties to try to adjust and settle their litigated cases, especially when based upon the judgment of the court, and, upon failure, then to apply to said court for satisfaction of the remainder of the judgment. No encouragement should be given to such practice.
However, because of the several irregularities shown to us at the hearing of the matter, most of which are on the part of the respondent, we will not refuse to act; we will send a mandate to the trial court to resume jurisdiction and have the judgment in the case enforced, giving credit to the respondent for whatever amounts may have been paid petitioner by him against said claim. Costs of the appeal are ruled against petitioner and respondent; and it is hereby so ordered.
Petition granted.