MARY JACKSON et al., Appellant, v. JAMES WEAVER, Appellee.
MOTION TO DISMISS APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Heard: April 26, 1994. Decided September’23, 1994.
1. The appellate court may dismiss an appeal for failure of the appellant to appear on the hearing of the appeal, to file an appeal bond, or to serve notice of the completion of the appeal as required by statute.
2. Where the surety on an appeal bond is dead, the bond is defective.
3. A surety on a bond shall be either two natural persons or an insurance company authorized to execute surety bonds within the Republic.
4. There must be compliance with statutory provisions in the preparation and submission of bonds on appeal, and a failure to comply entitles the appellee to a dismissal of the appeal on motion.
The appellee in these proceedings moved the Supreme Court to dismiss the appeal announced from the judgment of the Civil Law Court, Sixth Judicial Circuit, Montserrado County, on grounds of material defects in the appeal bond filed by the appellant. Appellee contended that the appeal bond carried the name and signature of Hester L. Jackson as surety, whereas the said Hester L. Jackson had died about eleven years before the action of ejectment was filed. The appellee also indicated that the affidavit of sureties and the notice of completion of appeal were defective in that the ejectment action had only Mary Jackson and Olivia Mars-Dixon as plaintiffs, whereas the appeal bond, the affidavit of sureties and notice of completion of appeal contained the name of the late Hester L. Jackson as a party also. The appellant in resisting the motion, contended that the appellee should have excepted to the bond in the trial court and this would have enabled him to file a motion to justify the sureties; that appellee’s failure to do so, denied him the right to this relief. Appellee however argued that the late filing of the bond did not leave sufficient time to invoke the necessary statutory provision governing exception to and justification of sureties.
The Supreme Court ruled dismissing the appeal on grounds that the bond filed did not meet the requirements of the statute. The Court further held that for it to entertain and hear an appeal there must be compliance with statutory provisions in the preparation and submission of appeal bonds; and that the failure to comply subjects the appeal the dismissal. Accordingly, the Supreme Court grantedthe motion and dismissed the appeal.
Joseph P. H Findley appeared for appellants. Toye C. Barnardappeared for appellee.
MR. JUSTICE HNE delivered the opinion of the Court
The appellee/movant moved this Court to dismiss the appeal on the following grounds:
1. That the appeal bond carry Hester L. Jackson as surety whereas the said Hester L. Jackson died on January 11, 1977, approximately eleven (11) years before the action of ejectment was filed on May 2, 1988 and approximately twelve (12) years before the appeal bond was filed. The movant supports this argument by a certificate of death dated August 9, 1989, issued by the Ministry of Health and Social Welfare, which is exhibit “A” to the motion.
2. That the appeal bond, the affidavit of sureties and the notice of completion of appeal are fatally defective in that the ejectment action has only Mary Jackson and Olivia Mars-Dixon as plaintiffs, whereas the appeal bond, the affidavit of sureties and notice of completion of appeal have the deceased, Hester L. Jackson, as both a party and a surety. The movant supports this allegation with copies of the appeal bond, the affidavit of sureties and the notice of completion of appeal as exhibits “B”, “C” and “D” to the motion.
3. That the appeal bond is defective and illegal because there is no legal surety on the appeal bond, in that Hester L. Jackson is named as surety on the bond but did not sign the same as she was not alive when the bond was given. That one Leona Jackson signed for Hester L. Jackson, which is illegal. That the law requires that a surety on a bond shall either be two natural persons or an insurance company authorized to execute surety bonds in Liberia.
4. That the said Hester L. Jackson could not be firmly bound in the appeal bond since she was deceased.
5. That Mary Jackson, one of the appellants/respondents is also one of the sureties appearing in the affidavit of sureties, but not on the appeal bond.
6. That the movant could not file exceptions to the bond in the court below; the notice of completion of appeal was served on June 23, 1989, which fell on a Friday, and the 60th day for completion of the appeal was on Monday, June 26, 1989; that notice of the filing of the bond was served on the movant on June 27, 1989, one day later.
The respondents in their resistance countered by saying the following in Counts 1, 3 and 4 thereof:
1. That the entire motion, that is, count 1 to 6 carry no grounds for the dismissal of appeal but sound more in an exception to surety under Section 63.5 of the Civil Procedure Law.
2. That all the allegations in the motion are matters of fact of allegations not of record and therefore not cognizable before this Court. That for this Court to determine the issues raised in the motion, Section 63.5 and 63.6 on exceptions to surety and justification of surety would have to be invoked and an investigation held with the sureties present, which this Court cannot do.
3. That the respondent denies the facts stated in the action and maintain that the bond is valid.
The respondents contend that section 63.5 and 63.6 on exceptions to and justification of surety would have to be looked at to determine the issue raised by the movant. The applicable hearing called for by these sections must take place in the lower court. They involve the taking of evidence which this court cannot do, as was well stated by the respondents in their resistance. The movant, however, averred that he could not have taken exceptions to or moved for justification of the sureties because the time he received notice of the filing of the bond, did not leave sufficient time to invoke Sections 63.5 and 63.6 for exceptions to and justification of sureties in the lower court.
The appellate court may dismiss an appeal for failure of the appellant to appear on the hearing of the appeal, to file an appeal bond, or to serve notice of the completion of the appeal as required by statute. Civil Procedure Law, Rev. Code 51.61
We are to determine whether the appeal bond filed by the appellants/respondents constitutes the filing of a bond as required by statute.
The appellee/movant contends that the surety on the appeal bond, Hester L. Jackson, is a dead person and that Leona Jackson signed for her. The death certificate annexed as exhibit “A” to the motion supports this contention. This applies also to the affidavit of sureties. Our statute requires that a surety on a bond shall be either two natural persons or an insurance company authorized to execute surety bonds within the Republic. Civil Procedure Law, Rev. Code 1:63.2(1).
Is a deceased person a natural person? The answer obviously is no. It is clear therefore that the bond filed by the appellants/ respondents does not meet the requirement of the statute. There must be compliance with statutory provisions in the preparation and submission of bonds on appeal and a failure to comply entitles the appellee to a dismissal of the appeal on motion. Gabbidon v. Toe, [1974] LRSC 24; 23 LLR 43, 44 (1974).
In view of the above, the appeal must be and the same is hereby dismissed with costs against the appellants. The Clerk of this Court is hereby ordered to send a mandate to the lower court to resume jurisdiction over the case and to enforce its judgment. And it is hereby so ordered.