DEADY alias GREBO WOMAN, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, MARYLAND COUNTY.

Argued April 4, 5, 1944. Decided May 4, 1944.

1. The modern practice does not favor too many technicalities, especially where such technicalities are not clearly supported by statutory law and the observance thereof is not mandatory.

2. The statutes controlling appeal bonds in justice of the peace courts and in circuit courts are not the same and should not be used interchangeably.

3. In criminal cases the Republic neither pays nor receives costs.

Appellant was arrested on a complaint by the private prosecutrix that appellant was disturbing the peace. Appellant was convicted of an infraction of the peace in the justice of the peace court and was ordered to give a peace bond and to pay costs. On appeal to the Circuit Court for the Fourth Judicial Circuit, the county attorney, on behalf of the Republic, moved to dismiss on the ground that the appeal bond was fatally defective. The trial judge sustained the motion and dismissed the appeal with costs against appellant. On appeal to the Supreme Court, judgment reversed and remanded with instructions to suspend sentence. Costs against appellant are disallowed.

No appearance for appellant. The Solicitor General for appellee.

MR. JUSTICE BARCLAY delivered the opinion of the Court.

Appellant has periodically appealed to this Court from the Circuit Court for the Fourth Judicial Circuit, Maryland County, for a review of a ruling and judgment against her. The case had its origin before a justice of the peace of Maryland County by whose writ she was arrested for an infraction of the peace upon a complaint made by one Elizabeth Dennis who charged her with disturbing the public peace by indecent behavior, by quarrelling and using obscene language tending to cause an infraction of the peace, and by threatening the life of the said complainant.

The justice of the peace after hearing the evidence rendered a judgment that the present appellant was guilty of the charge and ordered her to give a peace bond for six months good behavior, the penalty thereof being $37.50, and to pay all costs of said action. There was no fine. To this judgment appellant took exceptions and prayed an appeal to the Circuit Court for the Fourth Judicial Circuit.

On the calling of the case before the circuit court aforesaid the county attorney for Maryland County, on behalf of the Republic, then and now the appellee, filed and offered a motion to dismiss the appeal on the following two grounds:

“1. Because the appeal bond as filed in this said appeal is fatally defective and bad in that it carries only the one surety and not two or more sureties as required by the law in such cases made and provided,” and

“2. Because said appeal bond is further fatally defective and bad for failure to show on its face from start to finish that the surety thereto is an householder within the Republic of Liberia as is required by law.”

His honor the judge sustained the said motion and dismissed the appeal, ruling appellant to pay all costs which, it appears from the bill of costs found in the records, amounted to $18.18. Still dissatisfied and of the opinion that the said judge had erred, appellant felt it necessary to have her case reviewed by appeal to this Court.

The modern practice does not favor too many technicalities, but rather prefers to dig into and hear the merits or facts in a controversy, especially where such technicalities are not clearly supported by statutory law and the observance thereof is not mandatory.

The statute controlling appeal bonds from the court of the justice of the peace reads as follows :

“Every appellant must furnish a bond with good and sufficient surety to be approved by the Justice in an amount sufficient to indemnify the appellee for any loss he may sustain and conditioned that he will indemnify the appellee from all injury [arising] from the appeal, and will comply with the judgment of the court to which the appeal is taken, or any [other] to which the cause may be removed, or his appeal shall be dismissed.” Justice of the Peace Code; 1 Rev. Stat. § 671.

However, the statute controlling appeal bonds from the circuit courts or other courts of record reads differently. We quote from the Revised Statutes :

“Every appellant shall give a bond in an amount to be fixed by the court with two or more sureties, who shall be householders or freeholders within the Republic, to the effect that appellant will indemnify the appellee from all costs and from all injury arising from the appeal, and will comply with the judgment of the court to which the appeal is taken, or any other to which the cause may be removed. Appeal bonds are to be approved by the judge of the court from which the appeal is taken within sixty days after final decision or judgment. Upon the arrival of the bond, the clerk of said court shall forthwith issue a notice to the appellee informing him that the appeal is taken and to what term of the court, and directing said appellee to appear and defend the same. The appeal shall thereupon be complete. If such bond is not given the appeal shall be dismissed. . . .” 1 Id. § 426.

It is obvious that the two statutes are not the same and should not be used interchangeably. Consequently, we are not in accord with and cannot sustain the ruling of the lower court judge on count one of the motion since it is not supported by the law controlling appeals from courts of the justice of the peace, supra, which statute definitely states that appellant must furnish a bond with good and sufficient surety, not with two or more sureties as contended by the county attorney.

In Ruling Case Law the principle is laid down that:

“Where the statute requires a bond with ‘sureties’ a bond with only one surety is insufficient. Where, however, the statute requires on appeals in a criminal case that the accused give a bond ‘with good and sufficient security to be approved by the police judge,’ it has been held that a bond signed by the accused alone without sureties and approved by the judge, though it fails to meet the requirements of the law, is not utterly void, but if acted upon is effective to bind the signer and confer jurisdiction upon the appellate court. The statutes generally require the appeal bond to be accompanied by the affidavit of the sureties showing their property qualification. Upon the question of the effect of a failure to make a proper qualification affidavit, the authorities are conflicting, owing, primarily, to the difference in the wording of the statutes. Under some statutes the failure is held to render the bond a nullity and to entitle the appellee to a dismissal of the appeal on motion. Under other statutes it is held that such failure does not render the appeal bond a nullity, and the appellee is not entitled to a dismissal of the appeal in the absence of any showing that the sureties are not financially competent. There is a distinction between the competency of a surety under the law and his financial qualification. The former is fixed by statute, and leaves nothing in reference thereto to the discretion of the court or officer approving the bond, while the latter is subject to the discretion and judgment of the court or officer to whom it is presented, and he may approve or reject such bond as he finds it sufficient or otherwise. . . .” 2 Id. Appeal and Error § 91, at 115 (1914).

As to count two of said motion we fail to see that the judge was legally correct in sustaining same, for nowhere in the law already quoted herein does it appear that in preparing an appeal bond from the judgment in a justice of the peace court it must be stated or shown in the bond that the surety must be a householder or freeholder. The law is silent on the question of competency and financial qualification. The acceptance and approval of the bond is left to the discretion of the justice of the peace. He has to approve the bond, and if he is satisfied and approves, the bond is not subject to attack on that score but may be attacked for material defects in accordance with existing statutory law.

In the year 1940 the Legislature passed an act amending the law of bail in criminal, civil, and appeal causes, and made it possible legally for bail to be

“given by recognizance entered into by the principal and his sureties, who may be possessed of the qualifications required by existing statutes; or by tender of the amount required as bail in cash, checks, stocks or other negotiable securities capable of being readily converted into money, or [even] by offer of unencumbered real property held in fee by the bailor.” L. 1939-40, ch. XVIII, § 1.

Section 3 of said statute provides that any bond whatever in any criminal, civil, or appeal cause given as provided in that law must be considered a valid and legal bond.

It is obvious, therefore, that His Honor the Judge of the Circuit Court, in citing the case of Cavalla River Co. v. Fazzah, 7 L.L.R. 13 (1939), as a precedent upon which to base his ruling, was in error, for that case was an appeal from the Circuit Court for the First Judicial Circuit to this Supreme Court, and we have already shown herein that the laws controlling appeal bonds in the two courts are not the same and cannot be used interchangeably when appeal bonds are given by recognizance entered into by the principal and by his sureties as provided by law.

The bill of exceptions of appellant raises the question of costs, contending that in cases of this kind the defendant should not be required to pay costs. In criminal prosecutions as well as in civil cases costs are unknown at common law and are given only by virtue of statute. It has been a settled principle of law in this country since 1874 that in all criminal cases the Republic neither pays nor receives costs. We have not been able to find any provision therefor in the Justice of the Peace Code under “Infraction of the Peace” or in any other statute dealing with criminal causes, save that found in the Justice of the Peace Code under the caption, “Breach of the Peace by Persons living and cohabiting together,” which reads as follows :

“Where any adult, male and female, shall live and cohabit together in an open notorious manner, and shall outrage public decency by habitual quarrelling, fighting and using abusive and obscene language, to the disturbance and annoyance of the public, they shall be deemed guilty of a misdemeanor; and, upon conviction before any Justice of the Peace, they shall be fined in a sum not exceeding twenty-five dollars, and all costs as often as such persons shall be complained against and convicted.”

There appears, however, in the Justice of the Peace Code a special provision that in case of a failure on the part of a complainant to sustain his charge upon the trial of a case of infraction of the peace, the Republic shall not be liable for costs, but the same may, in the discretion of the justice, be charged against the complainant, the object of this provision being to discourage frivolous, mischievous, and malicious complaints without proper foundation or probable cause therefor. It is our opinion, therefore, that the justice of the peace and the judge of the court below erred in ruling defendant, now appellant, to costs.

Owing to the facts, however, that the evidence adduced at the trial of the case in the justice of the peace court is not in the record before us because the law does not require that court to keep a record of its proceedings and that the circuit court, a court of record, from which this appeal emanates, was not able to go into the merits of the case since a motion to dismiss the appeal offered by the county attorney at the call of the case was sustained by the trial judge, we find ourselves unable to review the evidence adduced at the trial. Because of our inability justly to affirm a judgment without having reviewed the evidence, this Court has decided, because of the errors committed by the trial judge, to reverse the judgment of the court below and to remand the case with instructions that the sentence of the justice of the peace ordering the appellant to give a peace bond for six months from the date of said judgment or sentence, be suspended and it is hereby so ordered.

Reversed.