JAMES W. DAVIES, Plaintiff-in-Error, v. ERNEST J. YANCY, Executor, OLIVE E. DENT, Co-Executrix, and HELENA E. YANCY-ELLIS, Co-Executrix, of the Will of the Late ALLEN N. YANCY, and His Honor W. MONROE PHELPS, Defendants-in-Error.

WRIT OF ERROR TO THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, MARYLAND COUNTY.

Argued November 23, December 8, 1948. Decided January 6, 1949.

1. Under our statutes a plaintiff may amend his complaint once, or withdraw it and file a new one ; but if he withdraws his complaint he must pay the costs of the action up to the time of such withdrawal.

2. Illness of counsel is good ground for a continuance of a cause.

3. Judges ought never to hurry to dispose of a matter if so doing would be prejudicial to the interests of the parties.

Ernest J. Yancy, a defendant-in-error herein, offered an executor’s deed for probate to which James W. Davies, plaintiff-in-error herein, filed objections; withdrew them, and filed new objections. The circuit court postponed the case on notice that the leading lawyer for the objector, plaintiff-in-error herein, was ill, and asked for briefs from both parties which, in addition to presenting their respective positions, were to include answers to questions propounded by the judge. The case was resumed and, without arguments, the judge dismissed the objections on the ground of alleged nonpayment of costs when new objections were filed, a point which was not in the questionnaire. Upon resumption the assisting attorney, Cooper, took over the case without instructions to do so, and did not except to the ruling in the case. The case is now before this Court on writ of error issued by Mr. Justice Shannon in chambers on petition of plaintiff-in-error. Judgment reversed and case remanded and the Bar Committee directed to require Attorney Cooper to show cause why he should not be disbarred and to report its findings to this Court.

J. G. Kolenky and John Cooper for plaintiff-in-error. O. Natty B. Davis for defendants-in-error.

MR. JUSTICE RUSSELL delivered the opinion of the Court.

On September 8, 1945, an application for a writ of error was filed in the office of the clerk of this Court by one James W. Davies, plaintiff-in-error, in the above-entitled cause against His Honor W. Monroe Phelps, Ernest J. Yancy, and the executrices of the last will and testament of the late Allen N. Yancy of Maryland County. The said application was heard in the chambers of our distinguished colleague, His Honor Mr. Justice Shannon, who handed down an exhaustive opinion granting said writ. A transcript of the records of the trial court was sent hither for review by this Court so that if any errors were found to have been committed at the trial same could be corrected.

After hearing the case and inspecting the records sent hither for our review, we are so much in agreement with the ruling handed down by the Justice presiding in chambers that we shall, with a view to giving an adequate background for the facts in the case, quote at length therefrom.

“Before the Circuit Court for the fourth judicial circuit, Maryland County, Ernest J. Yancy, one of the defendants-in-error in these proceedings, offered an Executor’s Deed for admission to probate, to which James W. Davies, plaintiff-in-error, filed objections ; but upon the filing of an Answer which seriously attacked the legal sufficiency of said objections, they were withdrawn and new objections substituted and filed.

“At the May Term A.D. 1945 of Court for that Circuit, presided over by His Honour Judge Phelps, the matter came up for hearing on the 25th day of May when the following record was made:

” ‘Case No. 3 on the Probate Docket—Yancy versus Davies, objections to the probation of a deed was called, when Counsellor Wilson gave notice that he represented the respondents and Attorney John R. Cooper gave notice that he and Attorney Milton represented the objector, but that Attorney Milton is the leading lawyer, and not being in Court, he is not able to proceed in his absence as Attorney Milton is in possession of all the pleadings and documents relative to the case.

” ‘In this respect the court says that it is in possession of a note under this date from Attorney Milton advising that he is ill and consequently cannot do any work today in the line of argument. The court postponed the arguments for Monday the 8th inst., the asst. counsel to Attorney Milton to notify him accordingly.’

“It appears from the above record made that the court was correct to accept and regard Attorney Milton as the leading lawyer in the case on behalf of the objector especially since there is nothing on the record to show that the respondents made the least objections to the making of said record or even excepted to its being made.

“However, before suspending the cause, the same record shows that because of an apparently voluminous and burdensome set of pleadings in the case, the court, `in order to enable it [to] give ample and adequate consideration and [a] decision in the controversies pleaded,’ ordered ‘counsel for both parties to the action to condense their pleadings in the form of briefs, in which the law upon which their contentions rely must be cited,’ and in the preparation of said briefs certain questionnaires were put to the respective counsels for ‘response’ therein.”

Quite strangely and without any record of court to show that the barrier which was in the way of hearing and disposing of the objections was removed, or that the reason which necessitated the postponement no longer existed, the judge on May 31, 1945, resumed the case and, without hearing the arguments and without a record of waiver of the same having been shown, proceeded to give his ruling on the legal issues, wherein he dismissed the objections and ordered the deed admitted to probate. The ruling was based upon the solitary point of the alleged nonpayment of costs at the time of renewing said objections, which issue was not included in the questionnaires referred to above; and said ruling did not pass upon the points which the judge, in said questionnaires, considered necessary and salient to a decision upon the pleadings of the cause.

The question as to nonpayment of costs on the amendment or withdrawal of a complaint has long been settled by this Court in the case Ernest v. McFoy, [1918] LRSC 2; 2 L.L.R. 295 (1918), involving debt, when Mr. Justice Johnson, later Chief Justice, speaking for the Court, said inter alia:

“By the statute laws of Liberia, a plaintiff may once amend his complaint, or withdraw it and file a new one; but he must pay the whole costs of the action up to the time of such withdrawal. (See Lib. Stat., ch. IV, p. 44, sec. 23.)

“This, however, does not apply to a withdrawal of the whole case; for by such withdrawal, the case being withdrawn from its jurisdiction, the court has no power to award costs.

“Where, however, a case is withdrawn and reentered, the court may make the payment of the first costs a condition for hearing the case; a failure to pay such costs before re-entering the case is not however legal grounds for dismissing the action. The costs may be paid nunc pro tune.” Id. at 296.

It is therefore evident that the trial judge erred when he dismissed said cause on the ground of nonpayment of costs.

It is not explained how it is that the matter was resumed and the ruling entered in face of the record of May 25, 1945, evidencing Attorney Milton’s illness. In addition, a certificate issued by Attorney Milton and filed as an exhibit to the application and not attacked or resisted clearly shows that his illness continued to the extent that he was obliged to enter the hospital of Firestone Plantations Company, which is where he was when the said ruling was entered, and consequently he was unable to enter exceptions thereto whereby the objector, plaintiffin-error herein, would be enabled to prosecute a regular appeal. We quote Attorney Milton’s certificate :

“HARPER, CAPE PALMAS,
June 6, 1945.

“To WHOM IT MAY CONCERN:
“THIS IS TO CERTIFY that the case Yancy versus Davies of the fourth judicial circuit, Maryland County, as docketed, was called for hearing by the Assigned Judge W. Monroe Phelps, the undersigned being the leading lawyer and in possession of all the pleadings and facts was not at because of illness on the day when it was called for hearing. In making announcements the Asst. Atty. J. H. R. Cooper said that because of the fact Atty. Milton being the leading lawyer etc., as per record of the court he could not proceed with the case. The court accepted his observations and had the case postponed. Very unfortunately we did not get better, but instead got worse and had to go to the hospital for treatment where we were confined for five days, and in our absence, despite the fact that we had informed the court of our illness and requested the postponement of all our cases before it, the judge went into the matter in our absence, using the Asst. Atty. who had already given notice as per the records of the court of his inability to conduct the case, and rendered judgment in said matter to the detriment of our client’s interest.

“The Court was not even in possession of our condensed pleadings as per its request, neither did objector know that his matter was being had at the time in order that he might except to the ruling and give notice of appeal.

“Said action on part of the court we feel was most unprofessional and further unfair to us and inequitable to our client.

“Respectfully, “N. THEO. MILTON,
Attorney-at-law.”

The hostile attitude, however, of Attorney J. H. R. Cooper toward the interest of his client is shown by the following facts of record in this matter now before us. Despite his expressed inability to carry on and prosecute his client’s interests in the absence of his colleague, Attorney Milton, the leading lawyer in the case, because said leading lawyer had all the pleadings and documents in his possession, Attorney Cooper subsequently was willing to carry on said interest in the absence of said Attorney Milton without either being briefed or instructed by the leading lawyer so to do. And further, the apparently careless and indifferent manner in which he handled said interest depicts either his actual incapacity or the fact that he had sold out his client’s interest. This latter conclusion can be easily deduced from the certificate that Attorney Cooper was willing to give the opposing side, of which they have made profert in their resistance to the application for the writ of error. Said certificate reads as follows :

“TO WHOM IT MAY CONCERN :
“THIS IS TO CERTIFY that I, John H. R. Cooper, Attorney-at-law, and qualified practitioner of the Maryland legal bar was retained as one of counsel by one James W. Davies of Gedetarbo in association with Attorney N. T. Milton and continued to defend said case in his behalf till the rendition of final ruling of Judge Phelps dismissing our renewed objections to the probation of a certain Executor’s Deed of the estate of the late Allen N. Yancy in favour of Ernest J. Yancy.

“That the final taxing in court of the items of . . . [cost] as paid by the respondents, executor and executrices of the estate up to the time of withdrawal of our withdrawn objections, was done by me in association with counsel of the other side; and that because of my associate counsel N. Theo. Milton having told me previous to the final disposition of said matter that he was not much concern about the case [and] because of other obvious reasons justifying my actions from a legal and factual standpoint, I had no cause to except to the ruling of His Honour Judge Phelps and therefore did not except to said ruling on behalf of my said client.

“JOHN R. COOPER, SR.,
Attorney-at-law.
“CAPE PALMAS, October 1, 1945.”

It must remain a mystery how Attorney Cooper was both willing and able to handle the case to its conclusion in the face of the record he made on May 25, 1945, or why he was permitted so to do by the court in the absence of proof that he was either briefed or instructed by the leading lawyer in the case.

We have carefully noted that Attorney Cooper in issuing said certificate to the opposite side did so with the express intention of prejudicing the interest of his client. For argument’s sake, we might take it for granted that Attorney Milton did state to him that he was no longer concerned with the case. Nevertheless that should not have prevented Attorney Cooper from calling his client and exposing to him the situation as he saw it. However, Attorney Cooper preferred, though present, to refuse and neglect to announce exceptions or to pray an appeal from a judgment manifestly prejudicial to the interest of his client. We are of the considered opinion that these acts of Attorney John H. R. Cooper disclosed by the records in the case at bar should be referred to the proper forum for investigation and discipline.

It is also a cardinal rule that judges ought never to hasten in the disposal of a matter if so doing would be prejudicial to the interest of parties. In the case Burney v. Jantzen, [1935] LRSC 14; 4 L.L.R. 322, 2 New Ann. Ser. 162 (1935) involving debt, it was held that:

“The law governing ‘Continuances’ as outlined by both criminal and civil law writers is plain and ought not to be misconstrued or misapplied. Among these grounds it is specifically stated that illness of counsel is good ground for ‘Continuance’ of any cause. We fail to see the sense of justice in the trial judge when he proceeded with the trial of said case and rendered final judgment against the defendant, now appellant.

“The counsel for the defense having given notice to the court that he was sick and therefore prayed for the continuance of the trial until the following day; under these uncontrollable circumstances, being the act of God, it is our opinion that the trial judge, in view of the law and of the fraternal feelings which should always exist between the bench and bar, should have granted the application and continued said case.” Id. at 326.

We are also of the opinion that the judge erred when he resumed the case, even though the time of postponement had been reached; and the court, in the absence of proof that Attorney Milton had recovered, should, in face of the record, have refused to accept the willingness of Attorney Cooper to proceed unless due care were taken to remove every possibility of a miscarriage of justice.

We are also of the opinion that Counsellor Wilson, who was of counsel for the defendants-in-error in the trial court, did not exercise that fraternal relationship which should pervade the atmosphere among advocates when he demanded in the absence of his adversary that the case be heard and determined. Burney v. Jantzen, supra.

In view of the above and after a careful review of the said records sent hither, we are of the opinion : (1) that the judgment of the trial should be reversed and the case remanded with instructions that it resume jurisdiction and hear the case de novo commencing with the arguments on the legal pleadings; (2) that the clerk of this Court be instructed to send a certified copy of this opinion and the judgment which follows to the bar committee of Maryland County, directing that it cite to appear before it the said Attorney John H. R. Cooper and require him to show cause why he should not be forever disbarred from the practice of law in this Republic, and that it submit a record of its findings and ruling in said matter to this Court at its March term, 1949; and (3) that costs of these proceedings be ruled against defendants-in-error; and it is hereby so ordered.

Reversed.