GHANDOUR BROTHERS, INC., Appellant, v. BROCKWOLDT & COMPANY, LTD., Appellee.

MOTION TO DISMISS APPEAL FROM THE DEBT COURT, MONTSERRADO COUNTY. Argued April 29, 1970. Decided June 12, 1970. 1. When the sureties on an appeal bond are not legally qualified under statutory provisions, the appeal bond is defective and the appeal is subject, therefore, to dismissal. A motion was brought to dismiss the appeal, and as amended was considered. The Court set forth the provisions of the new Civil Procedure Law, L. 1963-64, ch. III, � 6302, relating to qualification, and upon the failure to meet the requirements held the sureties unqualified and dismissed the appeal on the ground of a defective appeal bond, as authorized by Civil Procedure Law, L. 1963-64, ch. III, � 51o8. James G. Bull for appellant. Jacob H. Willis for ap- pellee. MR. JUSTICE Court. SIMPSON delivered the opinion of the These proceedings are in consequence of an amended motion to dismiss the appeal in view of the fact that the notice of completion of appeal, which alone places the appellee under the jurisdiction of the Court, was never served on appellee nor returned served. Count two of the motion further contended that the appeal bond as filed by the appellant was defective in that it was insufficient with respect to complying with the new Civil Procedure Law, L. 1963-64, ch. III, � 5108,6302. In resisting the amended motion, the appellant con34 LIBERIAN LAW REPORTS 35 tended it was incorrect for appellee to have stated that the notice of completion of appeal was not duly served upon him. Additionally, he stated that the return made upon the notice of completion is evidence of service but is not the only evidence of such service. In support of this contention, the appellant proferted a certificate from the Debt Court evidencing that service was effected but that there had been a failure to make the proper return upon the notice. Further buttressing his position, the appellant argued that the certificate of the Sheriff of the Debt Court and of his bailiff evidenced that there had, in fact, been service of the notice upon appellee’s counsel and that this certificate precluded any dispute in respect of the actuality of service. In respect of appellee’s contention that appellant had not complied with the new Civil Procedure Law to the extent that it relates to the appeal bond, appellant in resisting that particular count of the amended motion denied that his bond, as filed, was not sufficient. Since pleadings are generally decided in the reversed manner of the counts as laid therein, we shall proceed to first dispose of count two of the amended motion. In so disposing of it, we must refer to the two sections that are pertinent to the determination of whether or not the bond supports qualified sureties within their meaning. “� 6302. Legally qualified sureties. “1. Who may be sureties. Unless the court orders otherwise, a surety on a bond shall be either two natural persons who fulfill the requirements of this section or an insurance company authorized to execute surety bonds within the Republic. � 2. Lien on real property as security. A bond upon which natural persons are sureties shall be secured by one or more pieces of real property located in the Republic, which shall have an assessed value equal to the total amount specified in the bond, exclusive of all encumbrances. Such a bond shall create a 36 LIBERIAN LAW REPORTS lien on the real property when the party in whose favor the bond is given has it recorded in the docket for surety bond liens in the office of the clerk of the Circuit Court in the county where the property is located, or, if it is in the Hinterland, in the office of the clerk of the Circuit Court in the nearest county. Each bond shall be recorded therein by entry showing the following: “(a) The names of the sureties in alphabetical order ; ” (b) The amount of the bond ; “(c) A description of the real property offered as security thereunder, sufficiently identified to clearly establish the lien of the bond ; “(d) The date of such recording; “(e) The title of the action, proceeding, or estate. “3. Affidavit of sureties. The bond shall be accompanied by an affidavit of the sureties containing the following: “(a) A statement that one of them is the owner or that both combined are the owners of the real property offered as security ; “(b) A description of the property, sufficiently identified to establish the lien of the bond ; ” (c) A statement of the total amount of the liens, unpaid taxes, and other encumbrances against each property offered ; and ” (d) A statement of the assessed value of each property offered. “A duplicate original of the affidavit required by this section shall be filed in the office where the bond is recorded. “4. Certificate of Revenue Services. The bond shall also be accompanied by a certificate of the Revenue Services that the property is owned by .the surety or sureties claiming title to it in the affidavit and that it is of the assessed value therein stated, but LIBERIAN LAW REPORTS 37 such a certificate shall not be a prerequisite to approval by the judge. “5. Release of lien. When the condition of a bond has been fulfilled, a certificate to that effect shall be issued by the clerk of the court where the bond is filed. Such certificate shall be filed in the office of the clerk of the Circuit Court where the lien on the real property has been recorded to show that the lien has been released.” “� 51o8. Appeal Bond. “Every appellant shall give an appeal bond in an amount to be fixed by the court, with two or more legally qualified sureties, to the effect that he will indemnify the appellee from all costs or injury arising from the appeal, if unsuccessful, and that he will comply with the judgment of the appellate court or of any other court to which the case is removed. 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. Notice failof filing shall be served on opposing counsel. ure to file a sufficient appeal bond within the specified time shall be a ground for dismissal of the appeal; provided, however, that an insufficient bond may be made sufficient at any time during the period before the trial court loses jurisdiction of the action.” ( Emphasis supplied.) It is clearly evident that the bond as filed is insufficient, for the absence of legally qualified sureties thereon in accordance with the provisions of section 5302, supra. In view of the insufficiency of the appeal bond, the provisions of section 5i08 above, and especially the last sentence thereof, must here be invoked and the appeal ordered dismissed, with costs against appellant. And it is hereby so ordered. Motion to dismiss appeal granted.