BANK OF MONROVIA, Appellant v. VICTOR MASSOUD, Appellee.

APPEAL FROM THE CIRCUIT COURT, SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued May 15, 1973. Decided June 8, 1973. 1. All issues of law must be determined by the trial judge before the questions of fact are tried. 2. Therefore, when a trial judge fails to determine some issues of law by deciding they are issues of fact only, he commits reversible error. Appellee was sued in Debt Court by appellant, apparently without foundation, and after dismissal of the first action it commenced a second one, which also was dismissed. An appeal was announced by the bank but never taken the first time its suit was dismissed. No appeal was taken, or announced apparently, the second time its complaint was dismissed. In both cases the appellee herein was arrested on a writ of body attachment. In 1967, he commenced an action for damages in consequence of the apparently baseless suits and the inconvenience and financial harm done him. The trial judge disposed of issues of law and ruled the case to trial. The jury returned a verdict for the plaintiff and the bank appealed from the judgment rendered. The primary contention raised by the Bank related to the trial court’s determination that the answer raised certain questions of fact which the defendant contended were issues of law. The Supreme Court agreed after considering the disputed issues and deemed the failure to dispose of all issues of law before trial reversible error. The judgment was reversed and the case remanded to the lower court, to be tried again in accordance with the instructions of the Court. 199 200 LIBERIAN LAW REPORTS for appellant. Toye Bernard, Joseph F. Dennis, and Moses K. Nagbe Richard Diggs for appellee. WARDSWORTH MR. JUSTICE the Court. delivered the opinion of The genesis of the above entitled cause of action is gleaned from the certified record before us. On July to, 1967, Victor Massoud, appellee herein, filed in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, sitting in its law division for the September 1967 Term, an action of damages against the Bank of Monrovia, alleging that on July 6, 1966, without any financial obligations existing between them, the Bank entered an action of debt by attachment against plaintiff, as agent for Alexander Massoud, in the sum of $49,806.65, by virtue of which action his store, gas station, and living quarters in Lower Buchanan, Grand Bassa County, were closed down for four days, and he was also arrested and detained for four days, until his release was ordered only after a defendant’s attachment bond in the amount of $74,758.00 was filed. On November 15, 1966, Judge Frederick K. Tulay passed on the issues of law raised in the pleadings and dismissed the action with costs against the defendant, to which ruling the defendant noted exceptions and announced an appeal to this Court. The appeal was granted by the trial court but defendant withdrew its appeal on November 24, 1966. Appellant on November 26, 1966, again filed an action similar to that of July 6, 1966, and appellee was again arrested, his store, gas station, and living quarters closed for two days, and he was not released, nor his premises reopened until he filed a defendant’s attachment bond in the sum of $74,709.98. On February 14, 1967, Hon. John A. Dennis, Circuit Judge presiding over the December 1966 Term of the Civil Law Court, Sixth Judi- LIBERIAN LAW REPORTS 201 cial Circuit Court, in passing upon the issues of law raised in the pleadings dismissed the action, from which ruling the plaintiff did not appeal. Because of the facts stated above, on July 1o, 1967, appellee in these proceedings filed an action against the appellant to recover damages for injuries sustained as a result of the two actions of attachment brought against him by appellant. Trial of the case commenced and continued until April I, 1971, when the jury brought in a verdict in favor of the appellee, awarding as special damages the sum of $1,49o.00 and $15,000.00 as general damages. Defendant excepted to this verdict and filed a motion for a new trial which was denied; whereupon the trial judge rendered final judgment on May 26, 1971, to which final judgment defendant noted exceptions and announced an appeal to this forum. Appellant bases his appeal upon a bill of exceptions containing eight counts. We deem count one sufficient to consider. It alleges that on September 14, 1967, Judge Lewis only partially disposed of the issues of law and adjourned the case until the following week, but took no further action before he ordered the case tried. Appellee denies the allegation as false and misleading, and also refers this Court to the minutes of the court, sheet 1, of October zo, 1967. The precise question presented in this controversy is whether or not the ruling of the judge passed on all the issues of law presented in the case before ruling the case to trial by jury. Reviewing the ruling of the trial judge it is noted that the judge ruled that counts 3, 4, 5, and 6 of the answer were issues of fact to be presented to the jury for their consideration. We have no doubts as to the factual character of count 3 and hold that the judge correctly ruled it to the jury as an issue of fact for determination. As to counts 4, 5, and 6 we find it difficult to agree with the 202 LIBERIAN LAW REPORTS judge that these counts presented questions of fact and not law. After studying count four of the answer, it seems to be very clear to us that the defendant’s contention does present an issue of law. The question presented therein is whether the plaintiff’s failure to obtain an affidavit of ownership by which he could have obtained the release of his attached property constituted laches and waiver. It is obvious, and the judge should have recognized it and given it the proper consideration. Count five of defendant’s answer also presents a question of law, whether, as a matter of law, counsel fees and expenses incurred as the result of the attachment, such as procurement of bond, transportation, boarding and loading, are excluded when estimating damages sustained. It is purely a question of law for the judge’s determination and not the jury’s. Again, in count 6, as in counts 4 and 5, a question of law has obviously been raised. The question therein is whether the amount of $450.00 lost by plaintiff’s wife traveling from Lower Buchanan to Monrovia for business purposes directly growing out of the attachment proceedings served on her husband, is not recoverable by virtue of the fact that plaintiff’s wife was not a party to the actions of debt, and, further, because the amount lost was not included in the attached property by virtue of the writ of attachment. As mentioned above, this is obviously a question of law which should have been decided by the judge and not the jury. It results, therefore, from the analysis we have just gone through, that it was error on the part of the judge when he ruled counts 4, 5, and 6 of defendant’s answer raised issues of fact, thereby referring them to the jury rather than disposing of the issues of law raised by them. The Civil Procedure Law applicable herein provides that when there are mixed questions of law and fact the issues of law must first be disposed of. “When the pleadings raise questions both of law and LIBERIAN LAW REPORTS 203 of fact, the court shall determine all issues of law before it tries the questions of fact.” 1956 Code 6:313. And in Johns v. Witherspoon, [1944] LRSC 32; 8 LLR 462 (1944), this Court held that it is a fundamental rule of law as well as of pleading and practice that issue must be joined before a cause can be legally tried, and it is an equally basic rule of law that all issues of law must first be disposed of by the court before considering issues of fact. See also Geeby v. Geeby, 12 LLR zo (1954). In the instant case it has been shown that the judge did not dispose of all the issues of law presented in the pleadings. Therefore, in view of the foregoing, the judgment of the lower court is hereby reversed and the case remanded to the court of origin for rehearing, with specific instructions that this case be given precedence on the docket by the trial judge and that the issues of law raised in the pleadings be disposed of as required before ruling the case to trial by jury. Costs to abide final determination. It is so ordered. Reversed and remanded.