J. G. HANDSFORD, Appellant, v. HON. DESSALINE T. HARRIS, Circuit Judge, Sixth Judicial Circuit, Montserrado County, and J. DANIEL POTTER, Appellees.

APPEAL FROM RULING OF JUSTICE PRESIDING IN CHAMBERS DENYING A WRIT OF ERROR TO THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued November 5, 1968. Decided January 30, 1969. 1. A writ of error is properly issued when it calls up for review any judgment, decree, or decision of a subordinate court which was entered against a party for some circumstance over which he had no control, such as nonnotice in the instant case. 2. It is essential for the enforcement of a judgement that it be valid and not void. 3. An order enforcing a void decree is void ab A bill in equity for cancellation of a deed was instituted in 1963 by the respondent in these proceedings. At that time, in the absence of the opposing party or his counsel, the court found for the petitioner in cancellation. The following day a motion for rehearing, brought by the aggrieved party, was granted by the court. The decree was vacated and the matter ordered reheard. Nothing further was done by the party seeking cancellation until 1968, when he obtained, without notice, a decree by default, based on the 1963 decree which had been vacated, ordering issuance of a curator’s deed in place of the deed canceled, which was probated and registered. A writ of error was denied to the petitioner by the Justice presiding in chambers, from which ruling an appeal was taken. The ruling was reversed, the curator’s deed ordered canceled, and the 1963 cancellation suit remanded for hearing, upon notice of assignment of the cause. James H. Smythe for appellant. Jacob Willie for ap- pellees. 176 LIBERIAN LAW REPORTS 177 MR. JUSTICE MITCHELL delivered the opinion of the court. This case grows out of a petition filed in the chambers of this Court praying for the issuance of a writ of error, in which J. G. Handsford is the plaintiff in error and Hon. Dessaline T. Harris, presiding by assignment over the Circuit Court of the Sixth Judicial Circuit, and J. Wniel Potter, are defendants in error. This application was brought for the purpose of seeking relief against the enforcement of a decree that had subsequently been vacated by the lower court in a cancellation proceeding. The petition is composed of eight counts and we will include in this opinion counts 2, 4, and 6. 2. That during the September Term of the Civil Law Court, 1963, on December 12 Hon. James W. Hunter issued a decree by default, canceling said deed and ordering the Curator of Intestate Estates to issue a Curator’s Deed in favor of the said J. Daniel Potter. “4. That Hon. Dessaline T. Harris, presiding over the March Term of said court, was misled into enforcing the void decree of Judge Hunter, and that Judge Harris, in enforcing said decree, ordered the Curator’s deed in favor of the said J. Daniel Potter, without citing plaintiff in error. “6. That costs in the court below in the cancellation proceedings have not been paid and, therefore, the judgment of the court has not been fully satisfied.” The respondents having been brought under the jurisdiction of the Court by the preliminary, or interlocutory, writ, filed their return and alleged therein, inter alia, that the writ of error should not issue because the decree of the lower court had been fully satisfied, in that Judge Hunter having decreed the warranty deed of J. G. Handsford canceled and a curator’s deed issued in lieu thereof in favor of J. Daniel Potter, and that decree hav” 178 LIBERIAN LAW REPORTS ing subsequently been enforced by Judge Harris, and the said deed having been probated and registered, there remains nothing to be done. They argue further that statutory provisions required in the affidavit accompanying the petition in error were not inserted. Therefore, the said affidavit was invalid and rendered plaintiff’s petition subject to dismissal. They also contend that plaintiff in error was physically present in the lower court when the said decree was rendered by Judge Hunter, but failed to except thereto or to prosecute an appeal to the Supreme Court and that, therefore, plaintiff in error is barred under the law from the right to a writ for a review of the cause. Lastly, they say that the statutory period of six months having expired since the rendition of the aforesaid decree, error will not lie. The case was subsequently called for hearing by our colleague in chambers and an extensive ruling handed down, deciding for the appellees, and denying the writ of error. The plaintiff in error entered his exceptions to this ruling and prayed for an appeal before the full bench for further review, which was granted him. During argument before us, appellant’s counsel showed that Judge Hunter, presiding over the September 1963 Term of the Circuit Court, held a hearing on the bill in equity for the cancellation of appellant’s title deed in the absence of both appellant and his counsel, on December 12, 1963, and thereafter adjourned the case, a decree affirming his finding for plaintiff, the appellee here, to be issued the following day, and that after being informed of this act of the court, appellant filed a motion for a rehearing, which was decided on December 13. The court then conceded its irregular procedure and, therefore, vacated its decree and ordered the matter heard anew. Five years thereafter, the plaintiff-petitioners in the LIBERIAN LAW REPORTS 179 cancellation suit appeared before Judge Dessaline T. Harris, presiding over the March 1968 Term of the Circuit Court and requested the enforcement of the proposed decree of the court that had been vacated almost five years before, knowing in reality that there existed no such decree. This is unethical practice for counsel and renders him liable to censure. Therefore, since the enforcement order of Judge Harris was based on a decree that did not exist, such an order was void ab initio. “It is essential to the right to the enforcement of a judgment that it be valid and not void. A void judgment is ordinarily no protection to those who seek to enforce it. . . .” 31 AM. JUR., Judgments, � 886. If plaintiff in error had been given his day in court by being notified by Judge Harris of his intention to enforce the decree that had already been vacated, and failed or neglected to appear for the conservation of his legal interests, then, and in that case, he would not and could not pursue the remedy of error for a review, but on the contrary, not being informed of the transaction until the curator’s illegal deed had been probated and registered, it is our opinion that petitioner was without protection under the law except by error proceedings, since neither certiorari nor prohibition could have been invoked for the desired remedy, for the writ of error calls up before the appellate court for review any judgment, decree, or decision of a subordinate court which was prejudicially entered against a party for some circumstance over which he had no control, such as non-notice. See Civil Procedure Law, 1956 Code 6:1230-1233. We are, therefore, left with no choice but to reverse the ruling of the Justice, and to order the aforesaid curator’s deed canceled, and to further order remand of the case entitled : J. Daniel Potter, of the City of Monrovia, Montserrado County, Petitioner, Versus J. G. Handsford, of the City of Monrovia, Respondent, for a bill of equity 180 LIBERIAN LAW REPORTS for cancellation of deed, to be docketed and heard anew in the Equity Division of the Circuit Court, Sixth Judicial Circuit, after notice of assignment of the hearing to both sides. The clerk of this Court is hereby ordered to send a mandate, and a copy of the opinion to the court below informing it of this judgment. Costs against the appellee. And it is hereby so ordered. Reversed, 1963 case remanded.