THOMAS E. BEYSOLOW, Appellant, v. MARION A. GIBSON, Appellee.
MOTION TO DISMISS APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Argued December 13, 1942. Decided January 29, 1943.
Omission in an appeal bond of the clause guaranteeing compliance by the appellant with the judgment of the appellate court is fatal and the suit will be dismissed therefor.
On motion to dismiss appeal on ground that appeal bond is defective, motion granted.
B. Ricks and Thomas E. Beyselow for appellant. C. T.O. King for appellee.
JUSTICE DAVID delivered the opinion of the Court.
This case which was appealed from the Circuit Court for the First Judicial Circuit was first heard by this Court on motion filed during its April term, 1941, when there was an equal division of opinion among the members of this Bench, there being only four Justices present. Therefore it was never decided and, after several changes in the personnel of the Court, it has been argued again and a decision has finally been reached.
In his said motion, appellee gave the following reason for dismissing the appeal of the appellant :
“The appeal bond as filed with said appeal is fatally defective, in that, appellant failed to insert in said appeal bond the statutory clause, to wit ;—`that he will comply with the judgment of the court to which the appeal is taken ;’—one of the essential ingredients required to be included in appeal bonds.”
Upon inspection of the bond referred to, it is observed that the clause as recited in the motion of counsel for appellee had been omitted from said appeal bond. The single question, therefore, is whether or not such an omission from an appeal bond is fatal and consequently a sufficient cause for the dismissal of an appeal.
The contention of appellant in this argument of the question was that said omission was not such a material defect as was contemplated by the provisions of the Acts of 1935-6, Chapter VII, Section 1. Let us, therefore, examine that contention in comparison with that of his adversary. Our statute prescribes that “the remedy against bail, shall be an action of contract. . . .” Stat. of Liberia (Old Blue Book) ch. III, § 5, 2 Hub. 1536; 1 Rev. Stat. § 320.
In an appeal bond appellee enters into a contract with appellant that appellant will : (1) Give security to be approved by the court that he will indemnify the appellee from all injury arising from the appeal; and (2) Comply with the judgment of the court to which the appeal is taken or with the judgment of any other court to which the case may be removed. 1 Rev. Stat. § 426.
The sureties on the bond guarantee that their principal will perform each and every one of those conditions or pay a sum of money. Should there be a forfeiture of one or both of those conditions, there seems to us no reason to disagree with the view that the court, by virtue of the power inherent in the judiciary, would have the right to enforce the judgment against the principal contractor, as by virtue of process or otherwise the principal would -already have been brought under the jurisdiction of the court. This is not so, however, with the sureties who are remedy guarantors. The first step necessary would be to file an action of contract against them and thus give them their day in court. If then the sureties could successfully plead that they had not stipulated to comply with the judgment of the court, the action of contract could not but fail and appellee would be consequently left without remedy. Hence it is, the majority of us are convinced, that that stipulation is material and that its omission from an appeal bond is not merely a formal or immaterial omission.
A condition compelling compliance with the judgment of the appellate court requires compliance with the judgment of the lower court should same be affirmed by the appellate court. Likewise, a condition requiring compliance with the judgment of the appellate court renders appellant and his sureties liable on the rendition of a modified or corrected judgment. Although a court has inherent power to enforce its own judgment, this can be done only upon parties who are legally before such tribunals. Although a principal is under the jurisdiction of the court by the filing of his appeal bond, nevertheless his sureties to said bond would be neither liable nor compelled to comply with the judgment of this Court modifying or correcting the judgment of the court below where said sureties have not undertaken such an obligation under the conditions of their bond since their obligation is strictissimi juris and nothing is to be taken against them by construction. The extent or liability of the sureties on an appeal bond is fixed by the legal import of the condition in the bond and not by the judgment of the appellate court. No action at law could therefore be maintained against a surety for failure of the principal to comply with a judgment of an appellate court where the breach of such a failure was not one of the conditions assumed by said surety.
The object of an appeal bond is to secure appellee against loss or failure to prosecute the appeal on the part of the appellant; to discourage, upon considerations of public policy, frivolous and vexatious litigations; and to secure the performance of the judgment that may finally be rendered in the cause upon or after the appeal, whether said judgment is affirmed, modified, or corrected.
The mistake of the counsel for appellant in omitting from the appeal bond the statutory averment as quoted above, which averment is indispensable to a legal and valid appeal bond under our statute, renders said bond defective and said appeal subject to dismissal. i Rev. Stat. § 426. To deny to the appellee this guarantee of compliance with the judgment is to jeopardize the ability of the appellee to recover from the sureties in the event of death, insolvency, or other inability of the principal to comply with the judgment.
This principle is substantially that laid down in our statutes as well as in several common law authorities. Rev. Stat. § 426; Morris V. Gatlin, 1 L.L.R. 252 (1893) L. 1935-36, ch. VII, § 1; 21 R.C.L. 974 (1918).
It is the opinion of the majority of us, therefore, that the case should be dismissed and appellant ruled to pay all costs of this action ; and it is hereby so ordered.
Motion granted.
- JUSTICE RUSSELL dissenting.
“[Mild will comply with the judgment of the court to which the appeal is taken, or any other to which the cause may be removed.” 1 Rev. Stat. § 426.
This is one of the clauses in our appeal statutes, the omission of which the majority of my colleagues believe to be a material defect in the appeal bond now under review, and thus a ground for the dismissal of this appeal; as I am maintaining a contrary view, that is the ground for this dissent.
The Constitution of Liberia, as well as other subsequent statutes relating to the judiciary and the courts, provides:
“The Judicial power of this Republic shall be vested in one Supreme Court, and such subordinate courts as the Legislature may from time to time establish. . . .” Const. of Lib. Art. IV, sec. 1.
“Every court shall have power to cause to be arrested and brought before them by writ of arrest, or otherwise, any person who may interrupt or disturb its proceedings, resist the execution of a writ or writs issued by its authority refuse or neglect to obey its lawful summons, or that of the sheriff to attend upon its sitting, or refuse or neglect to perform the duties, for the performance of which any such person may have been summoned, or who being summoned and having appeared, shall depart from the court without leave. . .” Stat. of Lib. (Old Blue Book) ch. VIII, § 5, 2 Hub. 1545.
Before proceeding any further, let us pause and ascertain the true and real meaning of the words “judicial power” mentioned in our Constitution and see if it is an inherent power vested in a court to enforce its judgments and all other decrees given by its orders or if it is a power to be exercised only when reference is made to it in an appeal bond as required by our appeal statute.
Judge Bouvier defines judicial power as :
“The authority vested in the judges.
“The authority exercised by that department of government which is charged with the declaration of what the law is and its construction so far as it is written law.
” ‘Judicial power, is, perhaps, better defined in some of the reports of our courts [meaning the United States] than in any other place, and especially so in the Supreme Court of the United States, because it has more often been the subject of comment there, and its consideration more frequently necessary to the determination of questions arising in that court than anywhere else. It is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.’ ” 2 Bouvier, Law Dictionary Judicial Power 1740 (Rawle’s 3d rev. 1914) .
In view of the foregoing citations, it is my opinion that “judicial power” thus vested in all courts to compel compliance with their judgments and other decrees and orders is an inherent right given by the Constitution and cannot be given any additional force by subsequent legislation, and therefore the clause “and will comply with the judgment of the court” in our appeal statutes should be regarded and taken as a surplus which should not affect the validity of an appeal bond and should not be taken as a sufficient and material ground for dismissal of this appeal or of any appeal case.
The only material and foreign issue injected into a case as appears in an appeal bond is the indemnification clause, and therefore the omission of this clause as well as the failure to file an approved appeal bond within the statutory time ought to be the legal grounds for which an appeal should be dismissed.
The omission of the aforesaid clause in the appeal bond in this case, not affecting the financial interest of the appellee or the enforcement of the court’s judgment, ought not to have been regarded as such a fatal and material defect as to warrant the dismissal of this appeal ; and hence this dissent.