THOMAS BETTIE, Appellant/Respondent, v.EDWARD NEOR, Appellee/Movant

MOTION TO DISMISS APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY

Heard: December 10, 1981. Decided: February 5, 1982.

1. There is no statutory authority that the affidavit of sureties must contain the metes and bounds of the property offered as security on the bond; but in the total absence of description of the realty offered as security on the affidavit of sureties, the appeal shall be dismissed.

2. The notice of completion of appeal must be served on the appellee within sixty (60) days from the date of final judgment; otherwise the appeal must be dismissed upon motion filed by the appellee.

3. Although property valuation to the appeal bond is not a prerequisite to the approval of a bond, nonetheless, after the statutory period for filing an appeal bond has lapse and the property valuation is not annexed to the bond, the bond is materially defective and the case shall be dismissed on a motion of the appellee.

Appellee/Movant filed a motion to dismiss the appeal on the grounds that the appeal bond was defective for several reasons, as follows: absence of property valuation attached to the bond, absence of the names of the parties to the action, absence of the metes and bounds of the property offered as security for the appeal bond, and failure of the appellant to serve notice of completion of appeal within sixty (60) days after final judgment. The motion to dismiss the appeal was granted.

Francis N Torpor appeared for the Appellant/Respondent. J. Emmanuel R. Berry appeared for the Appellee/Movant.

MR. JUSTICE YANGBE delivered the opinion of the Court.

Appellee/Movant filed a motion for dismissal of the appeal and has assigned the following reasons therefor, to wit:

a) absence of property valuation annexed to the appeal bond;

b) absence of the names of the parties to the action on the appeal bond;

c) no metes and bounds of the property offered as security indicated on the affidavit of sureties;

d) nonservice of the notice of the completion of the appeal within sixty (60) days from the date of the final judgment.

Section 63.2(2) of the Civil Procedure Law, Rev. Code requires that the affidavit of sureties contain a description of the real property offered as security on the bond, sufficiently identified to establish the lien of the bond. However, there is no statute extant providing that the affidavit of sureties must contain the metes and bounds of the property offered as security on the bond. In the case, West African Trading Corporation v. Alrine (Liberia) Ltd, [1976] LRSC 23; 25 LLR, 3 (1976), a motion to dismiss the appeal was filed on similar grounds, and this Court, for the first time, held that:

“…It is not sufficient to say that a surety owns an acre on a particular street; that property must be described in a manner to make finding it on the ground an easy exercise. We hold that this is best accomplished by stating the number of the plot and the metes and bounds. In such circumstances there would be no difficulty in designating the land with certainty…. “

In that case there was no description of the kind of the property in the affidavit of sureties as in the instant case.

In view of the total absence of description of the realty offered as security on the affidavit of sureties in this case, we have no alternative but to re-affirm the holding of this Court in the case West African Trading Corporation v. Alraine (Liberia) Ltd, already cited hereinabove.

Liberian law provides that every document filed in a case must contain the caption of the case, which includes the names of the parties or the title of the case. Civil Procedure Law, Rev. Code 1:8.1(2); Vamply of Liberia Inc. v. Kandakai et al.[1973] LRSC 55; , 22 LLR 241 (1973). The law also requires that the notice of the completion of the appeal must be served on the appellee within sixty (60) days from the date of final judgment; otherwise, the appeal must be dismissed upon motion filed by the appellee. Civil Procedure Law, Rev. Code 1:51.9 and 1:51.16.

Appellant/respondent has filed a five-count answering affidavit, contending that pursuant to Ru1e III, Part 1 and 3 this Court should not entertain the motion. Appellant/respondent also requested the Court to deny the motion for the following reasons: first, the records in this case are not before this Court, because the counsel or parties in the case have not taxed the records; second, the statutory period for the opening of the Supreme Court is on the second Monday in October, 1981.

Appellee/movant filed for diminution of records, which was granted prior to hearing arguments on the motion to dismiss, and the records were sent to us. Therefore, the contention that the record in the case are not before us, has no merits.

After the filing of a bill of exceptions, the only court which has jurisdiction in a case is the appellate court. Hence, Rule III of the Revised Rules of the Supreme Court cited above by appellant is not applicable to this case. Count one of the bill of exceptions is accordingly overruled.

In count two of the bill of exceptions, appellant/respondent contended that the property valuation is not a pre-requisite for the approval of the bond, and that after the approval of the bond; the property valuation was obtained and made part of the records in this case.

Attached to the motion to dismiss is the certificate of the clerk of court verifying to the effect that there is no property valuation to the appeal bond. This Court holds that although property valuation to the appeal bond is not a pre-requisite to the approval of a bond, nonetheless, after the period required by statute within which a bond should be filed has lapsed and the property valuation is not annexed to the bond, it becomes fatal in the face of the statutory provisions. The second count of the bill of exceptions is also, similarly, overruled.

Counts three and four of the bill of exceptions have already been traversed in this opinion; no further comment is necessary. The same are, therefore, not well taken.

The final judgment in this case was rendered on the 12th of August, 1981, but up to the 20th of October, 1981, a period over sixty (60) days from the date of the final judgment, no notice of the completion of the appeal was served on the appellee/movant. See the clerk of court’s certificate attached to the motion. Count five of the bill of exceptions is, therefore, not sustained.

Accordingly, the motion to dismiss the appeal is hereby granted, the appeal is dismissed, and the Clerk of this Court is hereby ordered to send a mandate to the trial court, ordering it to resume jurisdiction in the case and to enforce its judgment. And it is hereby so ordered.

Motion granted; appeal dismissed.