GALLINA BLANCA, S. A., et al., Appellants, v. NESTLE PRODUCTS, LTD., et al., Appellees.

APPEAL FROM THE CIRCUIT COURT, SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued March 17, 1975. Decided May 2, 1975. 1. Ordinarily, the notice of completion of the appeal must not only be issued by the clerk of the court within sixty days after judgment, but must also be served within such time. 2. An error of the clerk of court should not prejudice the rights of a party. 3. As long as an appeal document requiring approval by a judge who happens to be outside the jurisdiction of his trial court is mailed by registered mail within the time allowed for such approval, the law will presume that such approval and filing had been timely done. 4. When an appeal bond is sent for approval to the trial judge abroad, ten additional days are added to the time allowed for approval of such bond and the issuance of the notice of completion of the appeal and the service thereof. 5. The issuance of the notice of completion of an appeal is the sole responsibility of the clerk of the court. A motion was brought to dismiss the appeal, alleging tardiness in filing of the appeal bond and service of notice of completion of the appeal. One day before the expiration of time allowed for filing an approved appeal bond, the appellants prepared and filed an unapproved copy of the bond and forwarded the original by registered mail to the presiding judge in Switzerland. The notice of completion of the appeal was also issued that day, but it was not served by appellants until three days later and beyond the time allowed by statute. The Supreme Court pointed out that the appeal bond was sent by registered mail abroad and, consequently, by statute, ten days additional had to be added to the computed time herein for filing of documents and their service. The motion was denied. Toye C. Barnard and Julia Gibson for appellant. Joseph P. H. Findley for appellee. 203 204 LIBERIAN LAW REPORTS MR. CHIEF JUSTICE PIERRE delivered the opinion of the Court. This case has come up to us on appeal from the Sixth Judicial Circuit Court, presided over by Judge Emma Walser, who presided over the September 1974 Term. The appellee has filed a motion to dismiss the appeal on the following grounds: 1. That an appeal having been announced on July 23, 1974, the appeal bond should have been approved and filed within sixty days, that is, on September 21, 1974. Instead, the appeal bond, which was filed on September 20, was not approved as the law requires and, therefore, no proper bond has been filed. 2. That the clerk had issued the notice of completion of the appeal in violation of the statute, since he issued the notice on September 20, although an approved appeal bond had not been filed. 3. That the notice of completion of appeal was served three days after issuance, that is, sixty-two days after rendition of judgment, instead of the sixty days allowed by statute. Appellants resisted the motion to dismiss their appeal, and contend that: (a) Their appeal bond, filed on September 20, 1974, was filed within the sixty days required by statute, and that it was not approved at the time of filing because Judge Walser was out of the country in St. Gallen, Switzerland, where she had gone for medical attention. They say that the original of their bond was mailed to her address on September 20, and that they had obtained a registered postal receipt as evidence of mailing. (b) With the mailing of the bond they had met the requirements of the law. They asked the Court to take judicial notice of the Circuit Court clerk’s certificate certifying the correctness of their allegation respecting the posting of the bond on September 20, and they say that LIBERIAN LAW REPORTS 205 the judge approved the bond nunc pro tunc and, therefore, the law had not been violated. (c) That notice of completion of their appeal was issued by the clerk of court on September zo, 1974, within the sixty days allowed by law for it to be filed. They say that its service three days after issuance was the responsibility of the sheriff and, therefore, blame for the late service should not attach to them. (d) That having filed their bill of exceptions within ten days, and their appeal bond within sixty days, the notice of completion of appeal was issued on the fifty-1 ninth day after rendition of judgment; but that there is no law extant which makes it mandatory for the said notice to be served within sixty days. In passing on the issues raised, we would like to traverse them in the reverse order of their presentation. The question of service of the notice of completion of an appeal has been settled many times by this Court. The notice must not only be issued within sixty days of judgment, but it must also be served within that time, under ordinary circumstances. McAuley v. Laland, i LLR 254 (1894.) ; Morris V. Republic, [1934] LRSC 16; 4 LLR 125 (1934) Jones v. Republic, [1956] LRSC 11; 12 LLR 297 (1956) ; Greenfield v. Republic, 13 LLR 205 (1958). The circumstances appearing in this case are not usual, because although ( ) the notice of completion of appeal was issued within time, it was not served until three days after issuance; (2) it was not issued upon the filing of an approved appeal bond as the law requires; and (3) the approved bond upon which it should have been issued was not filed until after expiration of the sixty days allowed for the completion of an appeal in normal circumstances. Hence, it was error for the clerk of court to have issued the notice of completion of appeal before the approved appeal bond had been returned by the judge from, Switzerland. Issuance of the notice by the clerk should 206 LIBERIAN LAW REPORTS have taken place only after an approved bond had been filed. The Civil Procedure Law on the point is clear, stating in substance that upon approval and filing of the appeal bond, as well as the bill of exceptions, the clerk shall forthwith issue upon appellants’ application a notice to the appellee and appellant shall serve a copy thereof on appellee. Rev. Code i :51.9. It seems clear, therefore, that the issuance of the notice of completion of an appeal is the sole responsibility of the clerk of the court. The clerk cannot contend that he was instructed to file the unapproved bond, because that would be tantamount to saying that he had violated the statute and had not performed his duty in accordance with law because he was told to do so. Who is to be held responsible for the clerk’s nonperformance, or wrong performance, of his duties? In the case of nonperformance, the appellant had a remedy by mandamus to compel performance ; but a case of error in performance presents a different matter. In a recent case decided by this Court, it was held that an error of the clerk should not prejudice the rights of the party. Yah River Logging Corp. v. United Logging Corp., decided March 3, 1975. The duty of the appealing party was to request the clerk to issue the notice of completion of appeal, after he had filed and requested posting of the bond ; the manner of the issuance was not the appellant’s concern. In Fazzah v. Roger Shoe Company, [1955] LRSC 4; 12 LLR 214 (1955), the Court held that where an appellant fails to fulfill the requirements for perfecting an appeal and it is due to a mistake or omission by an officer of the court, the defect is not fatal to the appeal, but may be remedied by order of the appellate court so as to promote justice. In Duncan v. Perry, 13 LLR 210 (1958), this Court ruled that where an appeal bond, although timely approved, was not received by the clerk until after the expiration of the prescribed period of time, the clerk was justified in refusing LIBERIAN LAW REPORTS 207 to issue a notice of completion of an appeal nunc pro tunc, but the appellant was not guilty of failure to supervise the preliminaries to the completion of the appeal. On the same ground, the clerk of court in this case should have refused to issue the notice before the bond had been returned approved, even if the appellant had insisted upon his doing so. So the error of premature issuance is the clerk’s responsibility. In Firestone v. Greaves [1946] LRSC 2; 9 LLR 147, 150 (1946), in a similar motion to dismiss the appeal, the Court denied the motion on the ground that “no act nor omission of a judge nor any officer of the court shall affect the validity of an appeal.” In that case the omission complained of was not attributed to the party, but rather to the clerk of the trial court, in that, although a notice of completion of appeal was issued by the clerk, and served by the sheriff, the notice did not contain a specific clause required by law. So in that case, as in this, it was not a question of no notice being issued, but that its issuance was not in accordance with law. The Court said then that this was a responsibility of the clerk which should not prejudice the party. The situation would have been entirely different had no notice of completion at all been issued and served. In that case the appellant would have been charged with not having superintended his appeal to see that this step was taken and taken in time. But where the step was taken, but was taken prematurely by the clerk, responsibility for this clerical error cannot be the appellant’s. But we shall say more about this later, and at that time we shall also review the question of the alleged late service of the notice by the sheriff. It has been argued that where a judge who presided over a case left the circuit in which the trial took place before completion of the appeal from the judgment, the Chief Justice should appoint another judge to approve 208 LIBERIAN LAW REPORTS the bill of exceptions and/or appeal bond, and thereby facilitate completion of the appeal. I have not been able to find authority for this contention. On the contrary, our Civil Procedure Law, Chapter 51 thereof, which deals with appeals from courts of record, is clear on the point with respect to approval of bills of exceptions and appeal bonds. Section 51.7 states : “The appellant shall present a bill of exceptions signed by him to the trial judge within ten days after rendition of the judgment. The judge shall sign the bill of exceptions, noting thereon such reservations as he may wish to make.” Rev. Code. Section 51.8, in its relevant portion states that “the appellant shall secure the approval of the bond by the trial judge and shall file it with the clerk of the court within sixty days after rendition of judgment.” Id. In both of these sections, approval of these documents has been limited to only the trial judge. It would seem, therefore, that the Chief Justice would be acting without authority were he to order a judge other than the trial judge to approve appeal documents in a case over which he did not preside. Reference was made to a case in which another judge, other than the trial judge, had been ordered to perform this function, but in that case Judge William Wardsworth, the trial judge, was elevated to the Supreme Court before he could complete the duties incident to the trial judge’s office. Hence, it was only to facilitate the completion of the appeal, and thereby afford the appealing party opportunity to be heard by the Supreme Court, that this exception was made to the general rule. It is obvious that Justice Wardsworth could not act as a circuit judge after his elevation to the Supreme Court. We come now to consider the mailing of the bond on September 20, when an unapproved copy was filed. According to the record, both unapproved copies of the bond were filed in the clerk’s office: the original and the carbon copy. The former the clerk posted to the judge’s LIBERIAN LAW REPORTS 209 address in Switzerland, and the latter he kept in his office. What is important here is that it has been shown that the document was posted for the judge’s approval, and that it was approved and returned, and is among the appeal documents. The appellee has not contended that return of the approved original was beyond the time allowed by law for the filing of appeal documents. Had this been the case, again the appellant would have been held responsible for not having taken a procedural step in time. The law authorizes mailing appeal documents to judges for approval, within and without the Country. Later in this opinion we will cite the law to support the practice. Hence, there was nothing wrong with mailing the bond ; the trouble was that the unapproved copy filed in the clerk’s office was a nullity, because it was not approved. The clerk’s decision to keep it in his office did not hurt or help either side; it is now a surplus document appearing in the appeal record. According to our Civil Procedure Law the following acts are necessary to the completion of an appeal from a judgment : (a) announcement of the taking of the appeal ; (b) filing of the bill of exceptions within ten days ; (c) filing of an approved appeal bond within sixty days ; (d) issuing a notice of completion of appeal within sixty days. The first three acts must be done by the appealing party, and the fourth is the sole duty of the clerk of the trial court. Rev. Code 1 :51.6, 51.7, 51.8, 51.9. In this case the appellant filed within time an approved bill of exceptions. One day before the expiration of the time for the filing of an approved appeal bond, that is to say, on September zo, 1974, the appellants prepared and filed an unapproved copy of the appeal bond in the office of the clerk of the court and forwarded the original by registered mail to the address of the trial judge, who was at the time in Switzerland. The registered receipt from the post office, and a certificate issued by the clerk to the 210 LIBERIAN LAW REPORTS effect that the unapproved bond was filed on September 20, that the original was posted to Switzerland on the same day and further, and that the notice of completion of the appeal was issued on the same day, are all parts of the record. It appears that subsequently the original of the bond which had been posted to Switzerland was returned bearing the approval of the judge. No date of approval is indicated on the face of the bond, but this was not necessary; so long as the bond had been posted within time. So long as an appeal document requiring approval by the judge who happens to be outside of the jurisdiction of the trial court, is mailed by registered mail within the time allowed for such approval, the law will presume that such approval and filing had been done within time. W eah v. Republic [1966] LRSC 77; 17 LLR 622 (1966). The notice of completion of the appeal was issued on September zo, as we have said before; and it was issued by the clerk on the strength of the filing of a copy of an unapproved appeal bond. This was contrary to the statute which requires that the notice should only be issued after an approved bond has been filed. Thus, all four of the procedural steps had been taken. The record shows that the notice of completion of appeal was not served until three days after issuance, that is to say, on September 23, 1974. Normally, it should have been served on the appellee within sixty days of rendition of judgment; but our Civil Procedure Law gives additional time : “Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, five days shall be added . . . if mail is sent to him within the Republic of Liberia, and ten days shall be added if mail is sent to him abroad.” Rev. Code r :1 .7. As this bond was mailed to the judge outside of Liberia, the law added ten days to LIBERIAN LAW REPORTS 211 the time allowed for approval of the appeal bond, the issuance of the notice of completion of the appeal and service thereof. We would like to comment that although there is no indication as to when the approved bond was returned from Switzerland, and although the appellees have not contended that it was not returned and filed within the additional ten days allowed under the statute just quoted, we know that flight time for mail between Monrovia and Switzerland is less than twelve hours each way. So the bond could have gone to Switzerland and been returned many times between September 20 and October t, 1974, which was the last day for the filing of appeal documents in the case, Issuance of the notice of completion of the appeal should not have been done by the clerk until the bond had returned, in which case service by the sheriff on September 23, was timely. Had it been shown that the bond was returned from Switzerland after the ten additional days allowed for posting abroad, there would have been no excuse, because the appellant would then have been responsible for not having acted within the seventy days after judgment, to see that his bond was posted, approved, and returned for filing. Considering the circumstances as related in the certified record, and in accordance with the various citations of law we have relied upon, we have no alternative but to hold that the grounds stated for dismissal of the appeal are not meritorious and, therefore, we deny the motion. Costs are to abide determination of the case. Motion denied.