THE COMMERCIAL BANK OF LIBERIA, by and through its President, LeROY E. FRANCIS, Petitioner/Appellant, v. HER HONOUR CASSELIA L. STEWART, Judge, Debt Court, Montserrado County, THE AMERICAN EXPRESS COMPANY, by and thru its Attorney-In-Fact, FRANCIS N. TOPOR, et al., Respondents/Appellees.
APPEAL FROM THE RULING OF THE JUSTICE IN CHAMBERS DENYING A PETITION FOR A WRIT OF CERTIORARI.
Heard: May 13, 1982. Decided: July 2, 1982.
1. An application for a writ of prohibition to restrain enforcement of a judgement will be denied where the petitioner had actual notice of the suit.
2. Prohibition will not be issued merely to correct a party’s neglect to act in his own interest.
3. Prohibition will not lie where the trial court neither exceeded its jurisdiction nor proceeded by wrong rules.
These prohibition proceedings emanate from an action of debt in the Debt Court for Montserrado County, in which final judgment was rendered against petitioner. Petitioner claims that the trial court conducted the trial and disposed of the matter without any notice of assignment being served on it; that the bill of costs was issued without being taxed by it; and that the said bill of costs was served on LIDCO, a corporate entity, distinct and separate from the petitioner. The Justice in Chambers ordered the alternative writ issued, but upon hearing the matter, denied the petition and quashed the alternative writ. An appeal was then taken from this ruling to the Full Bench.
The Supreme Court upon review of the records discovered that several notices of assignment were issued and duly served on petitioner’s counsel for trial; that the counsel who filed the petition was not the counsel of record during the trial, and hence, was not entitled to notice; and that the allegation of the bill of costs being served on LIDCO was false and misleading. Finding that the lower court proceeded in accordance with law, the Supreme Court affirmed the ruling of the Chambers Justice denying the petition and ordering the lower court to resume jurisdiction and enforce its judgment.
Lewis K. Free appeared for petitioner/appellant. Francis N. Torpor appeared for respondents/appellees.
MR. CHIEF JUSTICE GBALAZEH delivered the opinion of the Court.
As sorted out from the records of this case, the American Express Company of New York, through its attorney-in-fact, Francis N. Torpor, of the City of Monrovia, instituted an action of debt in the Debt Court for Montserrado County against The Commercial Bank of Liberia represented by and through its President, LeRoy E. Francis, also of the City of Monrovia. Pleadings advanced as far as the answer and rested. Law issues having being disposed of, the case was regularly assigned and acknowledged by both parties. However, when the case was called for trial, neither the defendant nor its counsel appeared. In the absence of any showing of cause for their nonappearance and upon invocation of Rule 7 of the Revised Rules of the Circuit Court by plaintiff’s counsel, which was granted, the trial was proceeded with, at the close of which, final judgment was rendered in favor of plaintiff, now co-respondent, and the petitioner was found liable for the amount sued.
Being dissatisfied with this ruling, the petitioner through Counselor Lewis K. Free petitioned the Justice in Chambers, Her Honour Angie Brooks-Randolph, for a writ of prohibition to restrain the enforcement of said judgment. The alternative writ was subsequently issued and served, and the returns thereto correspondingly filed.
In June, 1980, Mr. Justice Yangbe, then presiding in Chambers, heard and denied the petition for lack of legal and factual merits and consequently quashed the alternative writ. It is from this ruling of Mr. Justice Yangbe that petitioner appealed to this Court for a final review.
In counts one and two of the petition, the petitioner contended that the trial court tried and finally disposed of the entire case without any notice of assignment being served on it. Respondents, on the other hand, in count one of their returns, denied the truthfulness of the averments contained in counts one and two of the petition and buttressed their denial by the profert of several notices of assignments. Respondents added that initially, the Findley Law Firm represented the petitioner, defendant in the trial court, upon whom the notices of assignments were duly served and acknowledged and that there has been no notice of change of counsel filed and served on plaintiff. Therefore, Counselor Free could not have been served with any of the notices of assignments as he was not a counsel of record for either party.
A careful perusal of the trial records reveals that on the 30th day of October, 1979, a notice of assignment was issued for the disposition of law issues on the 6th day of November, 1979. While on the 12th of November, another notice of assignment was issued and served for the ruling on the law issues. Finally, on the 12th December 1979, the case was assigned for trial on the 13thday of December 1979. All of these notices of assignments were received and acknowledged by either counselor Joseph P. Findley or Attorney A. B. Clarke, Jr., all of the Findley Law Firm for the defendant, now petitioner, as is observed from the she-riff’s returns to the notices of assignments. There is no showing in the records that any of the above named counsel for petitioner had been rendered incapacitated to appear in court in the interest of the petitioner, in keeping with the assignments.
Pursuant to the last assignment of the 13th of December, 1979, the case was called for hearing but the petitioner did not show up for the hearing. Consequently, co-respondent moved the court to proceed with the trial as petitioner, who had been duly notified, had failed to appear, relying on Rule 7 of the Revised Rules of the Circuit Court. The co-respondent American Express Company’s application was granted and the trial was proceeded with resulting into a final judgment for plaintiff on the same date.
The granting of Co-respondent American Express Company’s application to proceed with the hearing of the case which resulted into the final judgment on the 13th of December 1979 is one of the main acts of the trial court, which petitioner considers irregular and for which this prohibition is sought. In this connection, we quote below the relevant provision of the Revised Rules of the Circuit Courts:
“The issues of law having been disposed of in civil cases, the clerk of court shall call the trial docket of these cases in order. Either of the parties not being ready for trial, shall file a motion for continuance, setting forth therein the legal reasons why the case might not be heard at the particular term of court; the granting or denying of which shall be done by the court in keeping with law, and its discretion. A failure to file a motion for continuance or to appear for trial after returns by the sheriff of a written assignment, shall be sufficient indication of the party’s abandonment of a defense in the said case in which instance the court may proceed thereon, or dismiss the case against the defendant and rule the plaintiff to costs, according to the party failing to appear.
In no instance might a case be continued beyond the term for which it is filed and set down for trial, except upon proper motion for continuance; provided, however, that should the business of the court be such that a particular case is not reached during the session, such case or cases shall be continued as a matter of course.
Clearing the trial docket by the disposition of cases, shall be the foremost concern of the judge assigned to preside over the term.” Rule 7 of the Revised Rules of the Circuit Court.
This Court has held that an application for a writ of prohibition to restrain enforcement of a judgment will be denied where the petitioner had actual notice of the suit. Sinoe v. Nimley et al[1965] LRSC 2; , 16 LLR 152 (1965). Similarly, this Court decided that prohibition will not be issued merely to correct a party’s neglect to act in his own interest. Francis v. Pynches et al.[1963] LRSC 6; , 15 LLR 224 (1963) Additionally, from a further inspection of the records certified to us in this case, it is observed that the trial court neither exceeded its jurisdiction nor proceeded by wrong rules, Bryant v. Morris, [1954] LRSC 41; 12 LLR 198 (1954). The trial court therefore proceeded in accordance with the legal authorities cited above.
The statute controlling representation of parties in court provides:
“Change of attorney. An attorney of record may be changed by court order or, unless the party is an infant or an incompetent person, by filing with the clerk of the court a notice of change together with a statement of consent to the change signed by the attorney and the party. A copy of notice of such change shall be served on the other parties.”
Since there was no notice of change of counsel filed and served in this case, Counselor Free, who according to the trial records is a complete stranger, could not then legally and successfully maintain the contention that his client, the petitioner, had been deprived of its day in court. Therefore, counts one and two of the petition must succumb to counts one and two of the returns.
In count three of the petition, petitioner alleged that after the final judgment, the bill of costs in the case, was issued without being taxed by the petitioner, and that it was served on a stranger, LIDCO, a separate and distinct corporation which was not a party to the action in any form or manner. Petitioner therefore considered such acts as being a strange procedure that is different from those which ought to be observed at all times; and, hence, prohibition would lie. The respondents, on the other hand, contended in their returns and maintained that nowhere in the records has the name of LIDCO appeared either as a party plaintiff or defendant, much more to appear in the bill of costs. Furthermore, the respondents continued, neither party to the suit had ever taxed the bill of costs, nor had the same been approved of by the trial judge as is evidenced by the sheriff’s returns.
The salient question that presents itself at this juncture is whether or not a bill of costs can be served on a person who is not a party to the action; whose name is not mentioned in the records and without the approval of the trial judge? We cannot understand by what sense of reasoning counsel for petitioner has come up with the conclusion that the bill of costs has been served on LIDCO Management, when it had not been a party to the proceedings in the court below, thereby unnecessarily resorting to the extraordinary remedy of the writ of prohibition. Under no legal circumstances can a bill of costs be served on a person who was never before, a party in a given case in a court of law; for it is a rule of universal approbation that the rights of no one shall be concluded by a judgment rendered in a suit to which he is not a party. 49 C. J. S., Judgment, § 19. Therefore, count three of the petitioner’s petition is unfounded and hence not considered. In this connection, we strongly warn counsel for petitioner against this habit of misrepresenting facts merely to gain favorable consideration of the Court for a relief, knowing that the allegations contained in the petition are absolutely false.
Throughout the entire records, there is no indication that the trial court unwarrantedly exceeded its jurisdiction or proceeded contrary to normal rules which regularly obtain in the disposition of such cases.
In view of the foregoing, we have no alternative but to deny the petition and refuse to issue the writ. Therefore, the ruling of the Justice presiding in Chambers is affirmed with costs against appellant and the Clerk of this Court is hereby ordered to send a mandate to the court below as to the effect of this judgment. And it is hereby so ordered.
Petition denied; ruling affirmed.