ANNAKOR GIKO, Appellant, v. JAMES K. GIKO, Appellee.

APPEAL FROM THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, MARYLAND COUNTY. Argued April 30, May 2, 1973. Decided June 8, 1973. 1. A written assignment giving notice that issues of law will be disposed of is a requirement which should not be ignored by a trial court. 2. An application in a divorce action for suit money should be considered by the trial court though applicant has been awarded monthly support in an alimony suit 3. Where collusion appears to have occurred between counsel for the parties in a divorce action, the trial court ought to dismiss the action and cite counsel in contempt proceedings. 4. A trial court is not to rule on issues of law not presented by the pleadings. 5. A judgment in a suit for alimony advanced as a defense in a divorce action may not be denied consideration by a trial court 6. The Supreme Court frowns upon cases being dispatched in lower courts with unseemly haste. 7. It is improper for a court which wrongly placed a defendant on a bare denial to use it thereafter as a weapon against the party by barring evidence presented, and disallowing questions intended to support the defense so stricken. 8. Harmless errors, such as inserting a wrong term of court or misstating the nature of the action, may not properly be invoked to strike a pleading or dismiss a motion. 9. A divorce action, though apparently a private controversy, is sui generis, in that the public interest occupies, in effect, the position of a third party. 10. The marriage contract once formed may not be altered by the consent of the parties, as other contracts may be, for the institution thereby created is one to which the public interest attaches. 11. By reason of the public interest, a trial court has an affirmative responsibility to determine that a defendant in a divorce action has been accorded an adequate hearing as a basis for rendition of a decree. Plaintiff instituted an action for divorce on the ground that his wife had deserted him. In an alimony suit commenced by the wife just prior to the start of the divorce action, a judgment was obtained by the wife awarding her a monthly sum for her support. Defendant’s answer in the divorce action raised justification as a defense, alleging notorious immorality as its basis, without further specification. She also contended that the award of sup155 156 LIBERIAN LAW REPORTS port barred the divorce action because it implicitly recognized that she was entitled to live apart on the monthly sum awarded her. A notice of assignment for disposition of the issues of law was served, but the matter was not reached that day. No new notice of assignment was served for the adjourned date. At the hearing the trial judge ruled that a notice of assignment was not necessary for proper disposition of the issues of law. He also refused to consider an application for suit money, ruling that the alimony awarded by monthly support was sufficient to defray the wife’s legal expenses. He thereupon ruled on the issues of law by refusing to consider the alimony suit’s bearing on the merits of the divorce action, and placed the wife on a bare denial by reason of the insufficiency of her defense as a matter of practice, being too vague and uncertain. At the trial the judge barred all questions which sought to establish justification. The jury returned a verdict for plaintiff, and the court rendered its decree from which the defendant appealed. Aside from the various rulings of the trial court, the bill of exceptions contended the evidence presented failed to justify the verdict. The Supreme Court appears to have agreed and especially because of the many reversible errors it perceived reversed the judgment without remanding the case, as ordinarily it would have done. Wellington K. Neufville Richards for appellee. for appellant. J. Dossen MR. JUSTICE HORACE delivered the opinion of the Court. This divorce case comes before us on appeal from the Circuit Court for the Fourth Judicial Circuit, Maryland County. According to the record, James K. Giko, appellee in these proceedings, entered an action of divorce for desertion against his wife, Annakor Giko, the appel- LIBERIAN LAW REPORTS 157 lant herein. He alleged that his wife had deserted his bed and board since 1966 and he had endeavored to induce her to return to her marital duties by repeated demands in writing but to no avail. He failed to make profert with his complaint copies of his demands in writing. On December 13, 1971, defendant filed a two-count answer averring that her leaving her husband was due to his notorious immorality, as could be evidenced by a judgment in an alimony suit rendered against him on December 6, 1971, just a day prior to his instituting the divorce action, and, therefore, appellee was barred from bringing an action of divorce for desertion, thereby pleading justification for deserting her husband. Appellant did not make profert with her answer the judgment in the alimony suit referred to therein, though she did, oddly enough, with her motion for a new trial. Pleadings rested with the filing of appellant’s answer. A few days after the filing of her answer, on December 18, 1971, appellant filed an application for suit money in the sum of $550.00 in order to pay her counsel for legal representation, as well as filing fees in the divorce action. On May 22, 1972, during the May Term of the Circuit Court for the Fourth Judicial Circuit, before Hon. Alfred B. Flomo, assigned circuit judge, the divorce case was called for disposition of the issues of law. Preliminary thereto, appellant’s counsel contended that first there should be an enforcement of the alimony judgment, and also disposition of the application for suit money. The court ruled that the issues of law were to be disposed of first. He also observed that no notice of assignment was necessary because of a postponement, since only issues of law were to be ruled on. We do not agree with the trial judge that no additional assignment was necessary when the matter was not heard on the day it was previously assigned. It is true that absence of counsel is no bar to a judge passing on the issues 158 LIBERIAN LAW REPORTS of law, but a written assignment giving notice that issues of law will be disposed of is a legal requirement which should not be ignored. It is another matter if after assignment has been issued a party fails to appear. Thereafter when counsel for appellant insisted upon having the judge rule on the application for suit money, the court denied the request, observing that the monthly alimony of $69.00 which had been allowed, finally, was sufficient to defray legal expenses. Suffice it to say in passing that this ruling seems unusual. Another interesting issue arose before disposition of the issues of law. Appellee’s counsel objected to appellant being represented by counsellor Wellington K. Neufville, her counsel of record, because of an alleged stipulation signed by counsel for the parties in the alimony suit, who are the same parties in the divorce action, to the effect that appellee had paid an amount to appellant through her counsel. After hearing the resistance of appellant’s counsel to the objection, the trial judge ruled that counsel for defendant apparently had stipulated to withdraw the answer in the divorce suit after receipt of $669.00 in full settlement of the decree in the alimony suit, but it was without consent of his client who later objected. The trial judge, however, felt that no consideration other than the alimony decree was given for the stipulation to withdraw and he maintained counsel for defendant in the divorce action could proceed. We must here state that we feel the trial judge erred in his disposition of this phase of the matter. Here was a clear case of collusion between counsel for the parties in a divorce case, contrary to every canon against collusion in divorce actions. What the learned trial judge should have done at this stage was to have summarily dismissed the divorce action and cited counsel for the parties to show cause why they should not be held in contempt for flagrant violation of both law and ethics. The court then proceeded to pass on the issues of law LIBERIAN LAW REPORTS 159 by overruling count one of the answer for being too vague, when immorality was raised as an issue, and count two as insufficient in law, for contending the award of alimony barred a divorce action. He ruled her to trial on a general denial. We have been unable to find any authority for the trial judge ruling on the issues of law in the manner in which he did. As stated earlier in this opinion, the pleadings rested with the answer. The appellee, who was the plaintiff in the action, did not traverse the issue raised by the answer in a reply. It is surprising therefore, that the trial judge undertook to rule on issues of law that were not before him. It is also surprising that the trial judge sought in his ruling to ignore the judgment or decree in the alimony suit which he had conveniently referred to in earlier rulings as shown before in this opinion. Immediately after ruling on the issues of law, upon application of appellee’s counsel the case was assigned for trial by a jury. Counsel for appellant protested on the grounds that he needed more time to get his witnesses, some of whom lived in Monrovia, and also because he felt that this case was being unduly rushed to trial, especially since there were numerous other cases ahead of it, some of them criminal, already on the trial docket. In spite of this protest by appellant’s counsel the case came up for trial on May 31, 1972. A jury was duly empanneled, witnesses testified, the jury was charged, and after deliberation returned with a verdict in favor of appellant. A motion for a new trial was filed, resisted, and denied. Whereupon, final judgment was rendered affirming the verdict of the jury. It is from this final judgment that this case is before us for review on an eleven-count bill of exceptions. We will now briefly pass on the points in the bill of exceptions which we deem necessary for a proper adjudication of the issues before us. The first point raised in the bill of exceptions, that is, 160 LIBERIAN LAW REPORTS in counts and two thereof, is whether or not the trial judge erred in his ruling on the issues of law. We have already stated our disagreement with that ruling and, therefore, sustain counts one and two of the bill of exceptions. The second point for consideration is appellant’s allegation of undue haste in the trial of this case as related in count three of his bill of exceptions. We do not uphold the unnecessary delay so often apparent in the dispatch of cases in the trial courts. Undoubtedly this is one of the causes of their overcrowded dockets. However, we do not uphold unseemly haste in the dispatch of some cases while others which should have preference in trial are left unattended. There is a long line of opinions of this Court condemning undue haste, and frankly this seems to be one that falls in that category. As late as this very term of Court, in King v. King, an action for divorce on the ground of desertion, we considered this point. “Another interesting feature of this case is how it obtained precedence in trial over all the other cases which had obviously been docketed, for although pleadings were rested on February 22, 1972, issues of law were disposed of on February 25, 1972, and trial began March 3, 1972. We wonder why the haste in disposing of this particular case. We also wonder if there were no criminal cases docketed for that term of court to take precedence in trial. However, this is just mentioned in passing.” The next four counts of the bill of exceptions deal with the sustaining of objections to questions put to witnesses by appellant’s counsel. For brevity, we will take one of these as an example. On cross-examination the plaintiff was asked a question : “Is it not true that she left your house because of the concubine in your house by the name of Esther Tumuley, and that she told you she would not return home until you got rid of this woman?” LIBERIAN LAW REPORTS 161 The appellee’s counsel objected on the grounds of ( 1) raising affirmative matter, the defendant being on a bare denial, and (z) without the pale of the res gestae of the case. The court sustained the objection on the first ground. There were several other questions put to witnesses to which similar objections were interposed and sustained. It is to be wondered how appellant could have presented any effective defense in a situation where she had been erroneously put on a bare denial by the court. It is our considered opinion that placing appellant on a bare denial and then using that as a weapon against her was manifestly unfair to her. It should be remembered that nowhere in the pleadings or in the evidence did appellee deny the allegations of his wife that she left him because of his open and notorious immorality. The next point of exception is that the verdict was erroneous and contrary to the evidence, because while on the witness stand appellant had indicated her willingness to return to her husband. We do not know what the trial judge’s charge to the jury was because it was, according to the record before us, an oral charge, but we can get some indication of what it must have been from the court’s interrogation of appellee who was on the witness stand: “Q. Tell us, when did the defendant leave your home? “A. My wife left my home in 1966. “Q. And since then has she returned? “A. No, she has not returned. “Q. Besides the letters which you say you wrote the defendant on two occasions, what other effort or efforts if any did you make to induce your wife the defendant to return to your bed and board? “A. I approached my wife many times in person begging her to return to my bed and board which 162 LIBERIAN LAW REPORTS she refused to do. I remember on one occasion, of many occasions, I sent one first cousin, Hon. David Wah Hne, now Senator for Maryland County, and she refused to return home. Besides that I have sent one of my cousins and she refused to return home. Besides this I sent one of my cousins who lives in Monrovia presently, Mr. Mark Y. Nyema, and yet she still refused to return home. And as you have before you, I’ve written letters, all of which she has failed to honor. “Q. We observe that the letters referred to and identified by you are carbon copies, tell us the whereabouts of the originals thereto, if you know? “A. The originals of the letters Pi and P2 are supposed to be with her, because they were written to her and sent to her.” The appellant was questioned by the court while she was on the witness stand. “Q. Are you saying that your husband begged you previously to return home but because in the alimony suit you say he was forced to marry you, and therefore you concluded he did not beg you? “A. I said he did not beg me at all. “Q. How long have you both been separated? “A. Since 1968, because 1966 to which he referred he and I hosted the Bishop and five other persons (delegates) as his wife, at the Church Conference held in Pleebo then. “Q. And since 1966 to 1968, both of you lived together as husband and wife, not so? � “A. Yes. “Q. You stated that you left the home because of immorality of your husband. Tell us when did this immorality take place? “A. Since we are not talking about the past, I would 162 LIBERIAN LAW REPORTS she refused to do. I remember on one occasion, of many occasions, I sent one first cousin, Hon. David Wah Hne, now Senator for Maryland County, and she refused to return home. Besides that I have sent one of my cousins and she refused to return home. Besides this I sent one of my cousins who lives in Monrovia presently, Mr. Mark Y. Nyema, and yet she still refused to return home. And as you have before you, I’ve written letters, all of which she has failed to honor. “Q. We observe that the letters referred to and identified by you are carbon copies, tell us the whereabouts of the originals thereto, if you know? “A. The originals of the letters Pi and P2 are supposed to be with her, because they were written to her and sent to her.” The appellant was questioned by the court while she was on the witness stand. “Q. Are you saying that your husband begged you previously to return home but because in the alimony suit you say he was forced to marry you, and therefore you concluded he did not beg you? “A. I said he did not beg me at all. “Q. How long have you both been separated? “A. Since 1968, because 1966 to which he referred he and I hosted the Bishop and five other persons (delegates) as his wife, at the Church Conference held in Pleebo then. “Q. And since 1966 to 1968, both of you lived together as husband and wife, not so? “A. Yes. “Q. You stated that you left the home because of immorality of your husband. Tell us when did this immorality take place? “A. Since we are not talking about the past, I would LIBERIAN LAW REPORTS 161 The appellee’s counsel objected on the grounds of ( ) raising affirmative matter, the defendant being on a bare denial, and (2) without the pale of the res gestae of the case. The court sustained the objection on the first ground. There were several other questions put to witnesses to which similar objections were interposed and sustained. It is to be wondered how appellant could have presented any effective defense in a situation where she had been erroneously put on a bare denial by the court. It is our considered opinion that placing appellant on a bare denial and then using that as a weapon against her was manifestly unfair to her. It should be remembered that nowhere in the pleadings or in the evidence did appellee deny the allegations of his wife that she left him because of his open and notorious immorality. The next point of exception is that the verdict was erroneous and contrary to the evidence, because while on the witness stand appellant had indicated her willingness to return to her husband. We do not know what the trial judge’s charge to the jury was because it was, according to the record before us, an oral charge, but we can get some indication of what it must have been from the court’s interrogation of appellee who was on the witness stand: “Q. Tell us, when did the defendant leave your home? “A. My wife left my home in 1966. “Q. And since then has she returned? “A. No, she has not returned. “Q. Besides the letters which you say you wrote the defendant on two occasions, what other effort or efforts if any did you make to induce your wife the defendant to return to your bed and board? “A. I approached my wife many times in person begging her to return to my bed and board which 160 LIBERIAN LAW REPORTS in counts and two thereof, is whether or not the trial judge erred in his ruling on the issues of law. We have already stated our disagreement with that ruling and, therefore, sustain counts one and two of the bill of exceptions. The second point for consideration is appellant’s allegation of undue haste in the trial of this case as related in count three of his bill of exceptions. We do not uphold the unnecessary delay so often apparent in the dispatch of cases in the trial courts. Undoubtedly this is one of the causes of their overcrowded dockets. However, we do not uphold unseemly haste in the dispatch of some cases while others which should have preference in trial are left unattended. There is a long line of opinions of this Court condemning undue haste, and frankly this seems to be one that falls in that category. As late as this very term of Court, in King v. King, an action for divorce on the ground of desertion, we considered this point. “Another interesting feature of this case is how it obtained precedence in trial over all the other cases which had obviously been docketed, for although pleadings were rested on February 22, 1972, issues of law were disposed of on February 25, 1972, and trial began March 3, 1972. We wonder why the haste in disposing of this particular case. We also wonder if there were no criminal cases docketed for that term of court to take precedence in trial. However, this is just mentioned in passing.” The next four counts of the bill of exceptions deal with the sustaining of objections to questions put to witnesses by appellant’s counsel. For brevity, we will take one of these as an example. On cross-examination the plaintiff was asked a question: “Is it not true that she left your house because of the concubine in your house by the name of Esther Tumuley, and that she told you she would not return home until you got rid of this woman?” LIBERIAN LAW REPORTS 159 by overruling count one of the answer for being too vague, when immorality was raised as an issue, and count two as insufficient in law, for contending the award of alimony barred a divorce action. He ruled her to trial on a general denial. We have been unable to find any authority for the trial judge ruling on the issues of law in the manner in which he did. As stated earlier in this opinion, the pleadings rested with the answer. The appellee, who was the plaintiff in the action, did not traverse the issue raised by the answer in a reply. It is surprising therefore, that the trial judge undertook to rule on issues of law that were not before him. It is also surprising that the trial judge sought in his ruling to ignore the judgment or decree in the alimony suit which he had conveniently referred to in earlier rulings as shown before in this opinion. Immediately after ruling on the issues of law, upon application of appellee’s counsel the case was assigned for trial by a jury. Counsel for appellant protested on the grounds that he needed more time to get his witnesses, some of whom lived in Monrovia, and also because he felt that this case was being unduly rushed to trial, especially since there were numerous other cases ahead of it, some of them criminal, already on the trial docket. In spite of this protest by appellant’s counsel the case came up for trial on May 31, 1972. A jury was duly empanneled, witnesses testified, the jury was charged, and after deliberation returned with a verdict in favor of appellant. A motion for a new trial was filed, resisted, and denied. Whereupon, final judgment was rendered affirming the verdict of the jury. It is from this final judgment that this case is before us for review on an eleven-count bill of exceptions. We will now briefly pass on the points in the bill of exceptions which we deem necessary for a proper adjudication of the issues before us. The first point raised in the bill of exceptions, that is, LIBERIAN LAW REPORTS 163 refer you to the day of our marriage, but I actually got fed up in 1968. (la And so that you are saying that you prefer living without your husband’s comfort but in his name as a wife and enjoying his money? “A. No. Have you visited him to find out if his immorality has been removed? “A.. Yes, I did. “Q. And under the circumstances, do you still want to be his wife? “A. Why not? “Q. Then and in that case, are you willing to go to him now? “A. Sure, why not?” The letters referred to by appellee, though offered and marked by the court were not offered in evidence. The reason for that seems obvious to us. The next points of the bill of exceptions concern the motion for a new trial that was dismissed on the grounds of venue before the wrong term of court and a mistake in the caption of the action, the caption showing alimony as the subject of the case instead of divorce. The Supreme Court has dealt with the issue before. A mistake in pleading in date or term is not legal ground for dismissing the action. The mistake may be corrected at any stage of the trial. Ernest v. McFoy, [1918] LRSC 2; 2 LLR 295 (1918) ; Tunning v. Greene, is LLR 137 (1963). With respect to the second point, entitling the nature of the action incorrectly in the caption, we believe this to be the kind of harmless error our new Civil Procedure Law refers to, especially since the body of the motion showed clearly that it referred to and dealt exclusively with the divorce action. The last point of the bill of exceptions involves the final judgment, which we also feel was erroneous. 164 LIBERIAN LAW REPORTS In his argument before this forum, counsellor J. Dossen Richards ably stressed the points that the justification advanced by appellant as her defense was badly pleaded because she did not specifically state in her answer what the notorious immorality of her husband was. He also emphasized the fact that the trial judge did not err when he refused to allow questions put by the counsel for appellant that sought to establish an affirmative defense because appellant was on a bare denial. Both points under proper conditions are meritorious, but in the first place, why was not the question of her improper pleading in her answer traversed in a reply? Having failed to do so, was it proper for the trial judge to raise the point in ruling on the issues of law? We think not. Having erroneously placed appellant on a bare denial, could the question of an affirmative defense be correctly raised? We also think not. It is but fair to mention, however, that counsellor Richards did not conduct this case in the court below. This is an action of divorce, and it differs from ordinary civil actions which are mostly bilateral. Our law, especially our judicial precedents, as well as the weight of the common law, hold that a divorce action is tripartite, in that the parties and the state and society are interested. One of our classic reported cases in this respect is Bryant v. Bryant, [1935] LRSC 15; 4 LLR 328 (1935) . The Court made a number of observations which we shall list : “4. But an action of divorce, according to the statute laws of Liberia, is not bilateral but triangular, and otherwise sui generis. “5. Hence, although other contracts may be modified, restricted, enlarged or released upon the consent of the parties, it is not so with a marital contract in the maintenance of which, in its purity, the public is deeply interested. “6. Further, in other civil suits, if a defendant does LIBERIAN LAW REPORTS 165 not appear and plead upon the record, on appearing at the trial he must rest his defense merely upon a traverse of the facts. “7. In divorce proceedings, however, there can be no judgment by default even though defendant may not appear. “8. Even where defendant in a divorce proceeding has neglected to plead, and is resting upon a bare denial of the facts, or even neglects to appear, in any such case the court and the jury, acting as the third party in the triangular contest, may deny the divorce for any of the three causes mentioned in our statute even though plaintiff may have proven his case.” The Court spoke on pages 329, 330 of the lawyer’s responsibility. “We may remark further that, of all classes of men, lawyers should be very mindful of their responsibility to build up families rather than to lend aid to their destruction, and hence in divorce proceedings more so than any other, should be careful to do all they can to heal, rather than widen, the breachby anything they may say or do.” And on pages 335, 336 the Court emphasized the matter of a divorce action. “According to Bishop, in his treatise on the Law of Marriage, Divorce and Separation (6th ed.), volume II, section 230: ” ‘A divorce suit, while on its face a mere controversy between private parties of record, is, as truly viewed, a triangular proceeding sui generis, wherein the public, or government, occupies in effect the position of a third party.’ “In the subsequent sections from 490 to 498, Mr. Bishop indicates the functions of the prosecuting officer in those jurisdictions in which he is authorized to intervene in all cases of divorce, and the duties of the 166 LIBERIAN LAW REPORTS court in all cases in which the statutes do not specifically authorize the appearance of the prosecuting attorney, and to which we shall revert later on.” Writers have addressed themselves to the nature of the marriage relation: “Marriage is a relation in which the public is deeply interested, and is subject to proper regulation and control by the state or sovereignty in which it is assumed or exists. The public policy relating to marriage is to foster and protect it, to make it a permanent and public institution, and to prevent separation. This policy finds expression in probably every state in this country in legislative enactments designed to prevent the sundering of the marriage ties for slight or trivial causes, or by the agreement of the husband and wife, or in any case except on full and satisfactory proof of such facts as the legislature has declared to be cause for divorce. Such provisions find their justification in this well-recognized interest of the state in the permanency of the marriage relation .. . and not being, like ordinary contracts, subject to dissolution by the mutual consent of the contracting parties.” 17 Am. JUR., Divorce and Separation, � 12. In Maynard v. Hill, [1888] USSC 101; 125 U.S. 190, 211 (r888), the United States Supreme Court commented on the uniqueness of the marriage relation. “Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.” A divorce case involves three parties : plaintiff, defendant, and the public. Geeby v. Geeby, [1954] LRSC 15; 12 LLR 20 LIBERIAN LAW REPORTS 167 (1954). Because of the tripartite nature of a divorce action, the trial court has an affirmative responsibility to determine that the defendant has been accorded an adequate hearing as a basis for rendition of a decree. Potter v. Potter, 15 LLPA. 269 (1963) . Ordinarily we would reverse the judgment in this case and remand it for a new trial, but since the record reveals so many reversible errors, and the nature of the case being what it is, we are not convinced that a remand would serve any useful purpose. It is our holding, therefore, that the judgment of the trial court be and the same is hereby reversed with costs against appellee, and the Clerk of this Court is hereby commanded to send a mandate to the court below to the effect of this opinion. It is so ordered. Reversed.