ALHAJI VARMUYAH CORNEH, attorney-in-fact, acting for himself and the Tribal Authority and people of Vai Town, Appellants, v. HAWAH KIAZOLU WAHHAB, by and through her husband, SAMI A. WAHHAB, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued November 5, 1968. Decided February 7, 1969. 1. A withdrawal of an action by a party is voluntary on his part even though such withdrawal results from the raising of a demurrer. 2. In order for a party to bring another action in the place of one withdrawn by him by notice or stipulation, he must specifically reserve such right, or be deemed to have voluntarily terminated the action by such notice of withdrawal or stipulation. 3. The failure of a party to respond to an answer or subsequent pleading, only concedes the issues of law raised therein and not the facts alleged, which are deemed denied by such nonpleading. An action was brought for cancellation. of a deed and to remove cloud on title. Due to a palpable clerical error in the court, the petitioners withdrew their petition, without reserving the right to reinstitute the action. Upon re-service of the pleadings by petitioners, the respondent attacked the action on the basis of the prior withdrawal. The action was dismissed and an appeal was taken from the judgment in the case. The judgment was affirmed. Nete Sie Brownell for appellants. appellee. M. M. Perry for MR. JUSTICE WARDSWORTH delivered the opinion of the court. An action for cancellation of a tribal deed and to remove cloud on title was instituted by appellants in the Circuit Court, Montserrado County, on January 3o, 235 236 1968. LIBERIAN LAW REPORTS Certain legal defects were discovered by respondent-appellee, and set forth in count one of her answer, which asserted, inter alia, “From an inspection of the writ of summons issued in this case, the said writ was issued on the 3oth day of January, 1968, yet, the respondent was required to appear on the 3rd day of January, 1968. Respondent submits that the said date is an impossible date, wherefore, respondent says that such action should be dismissed.” The action as instituted was withdrawn on the same day, that is to say, February 14, 1968, and on the following day, February 15, another writ of summons was issued, served, and returned, thus bringing the appellee under the jurisdiction of the court. On February 16, 1968, the appellee appeared specially, and on February 17 she appeared formally, and on February zo, the said appellee simultaneously filed a verified answer and a motion to dismiss the action. This was followed by appellants-petitioners filing their reply on February 28, 1968. On March 29, 1968, the trial judge, because of the legal points raised in the answer by the appellee, dismissed the case, to which ruling the appellants excepted and prayed for an appeal to this Court for review and final disposition, which appeal is based on a bill of exceptions containing four counts. We deem counts one and four worthy of consideration. In count one they complain against the trial judge, inter alia, “Because when the within case was filed on the 3oth day of January, 1968, and the respondents appeared, they filed an answer on the 7th day of February, 1968, count one of said answer reading as follows : (as set forth hereinabove.) “That upon the receipt of this answer, petitioners, realizing that the clerk of court had inadvertently inserted January 3 for February 3, 1968, as the return date of the summons, immediately paid the accrued LIBERIAN LAW REPORTS 237 costs of the proceedings as far as they had progressed, withdrew the original action and refiled the same case on the 14th day of February, 1968. “That respondent appeared and filed answer to the re-entered suit on the loth day of February, 1968, and stated inter alia: that this court should refuse jurisdiction over her person because the writ of summons issued in this cause had no legal foundation in that the petitioners have voluntarily withdrawn their action previously filed without the right to refile the same. “That in reply to this demurrer, petitioners stated, inter alia that upon receiving defendant’s answer, plaintiffs conceded the mistake made by the clerk of court and in keeping with law, withdrew said action and paid the costs thus far accrued. “The withdrawal not being voluntary but brought on perforce by the demurrer of defendant as contained in her answer, plaintiffs had the indisputable and constitutional right to renew said action at any time; hence, there is no law to bar plaintiffs from renewing said action.” The principal contention of appellants is that the withdrawal of the former action was not voluntary but brought on by the demurrer of defendant as contained in her answer and plaintiffs had the indisputable and constitutional right to renew said action at any time. We are at a loss to understand the conclusion reached by appellants that they had the right to renew their action at any time after withdrawing their former action since they failed or neglected to comply with the applicable statute. The statute referred to herein provides : “If the plaintiff wishes to bring another action based on the same claim, he must reserve his right to bring such action in his notice or in the stipulation of withdrawal.” Civil Procedure Law, 1956 Code 6 :596 (in part). 238 LIBERIAN LAW REPORTS The notice of withdrawal reads : “To : John Morris, Esq., Clerk of the Civil Law Court Sixth Judicial Circuit Temple of Justice, Monrovia Montserrado County, R.L. “Mr. Clerk : “Please take notice and spread upon the records of the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, that Alhaji Varmuyah Corneh, attorney-in-fact, acting for himself and the tribal authdrity and people of Vai Town, Monrovia, petitioners in the above entitled cause, have this i4th day of February, 1968, withdrawn their case of bill in equity for cancellation of purported tribal deed and to remove cloud from petitioners’ title. And you may further assess your cost as far as the case has gone. “And for so doing this shall constitute our withdrawal of the aforesaid case. “Respectfully submitted, “ALHAJI VARMUYAH CORNEH Attorney-in-fact, acting for himself and the Tribal Authority and the people of Vai Town, Monrovia, petitioners, by and through their attorneys, the Nete-Sie Brownell law firm: ” SEBRON J. HALL, “Attorney-at-law. “NETE-SIE BROWNELL, Co unsellor-at-Law.” Appellants contend further that the withdrawal was not voluntary but brought on by the demurrer of the defendant. We cannot agree with this argument because at the inception of an action the plaintiff should see to it that every legal requisite set forth in the written direction is strictly followed and this should be prudently super- LIBERIAN LAW REPORTS 239 vised and/or inspected by the plaintiff and duly corrected if any legal defect appears therein even before the process is served and returned by the ministerial officer of the court. This would obviate the chance of an attack by the opposing party. On the other hand, it is normal procedure for a party-litigant, observing a defect in the pleading of his adversary, to attack same and it is considered a voluntary withdrawal for the party attacked, if he regards it reasonable, to withdraw, amend, and refile, for the benefit of substantial justice. But where the withdrawal is based on an order of the court, he is then made to withdraw his action or pleading, and the said withdrawal being contrary and opposed to the will of the party withdrawing, such a withdrawal, under this circumstance, is considered involuntary. Having conceded the correctness of the respondent’s position assumed in count one of their answer, and thereby withdrawing their action for the purpose of refiling said action, their act in withdrawing their case is considered as being voluntary and not otherwise. The provision of the statute hereinabove quoted should have been strictly complied with ; therefore, count one of the appellants’ bill of exceptions is not sustained. In count four appellants complained that the trial judge did not take into consideration that the respondent failed to file a responsive pleading in a form of a rejoinder to the reply and was deemed to have admitted the issues of law raised in said reply but denied the facts contained therein. It is obvious that appellants contend in their brief under review that upon respondent’s failure to file a rejoinder to the points of law and fact raised in the reply, she should have been presumed to have admitted the said points of law, and the facts alleged, as well. We turn to the statute on this point : “If a party fails to respond to an answer or subsequent pleading, he shall be deemed to deny the facts 240 LIBERIAN LAW REPORTS stated therein and to rest his case on such denial only.” Civil Procedure Law, 1956 Code 6:312. Accordingly, the respondent having failed to file a rejoinder to appellants’ reply in these proceedings, she is presumed to have denied the facts as stated therein and to rest her case on such denial only. Consequently, it is evident that the trial judge did not err in refusing to sustain appellants’ position, for to have done so would have contravened the statute. Therefore, count four of appellants’ bill of exceptions is not sustained. In view of the foregoing, especially the failure of appellants to conform to the spirit and intent of the statute controlling withdrawal of causes, this Court is of the considered opinion that the ruling of the trial judge is sound and should be affirmed, with costs against appellants. And it is hereby so ordered. 4ifirmed.