THOMAS A. JACKSON, Petitioner, v. PERNICIA JACKSON and ADOLPHUS C. DENNIS, Respondents
MOTION FOR MANDATE TO RESTORE JURISDICTION TO LOWER COURT.
Argued December 13, 1944, March 13, 1945. Decided May 4, 1945.
1. The issuance of notices of appeal is a duty devolving upon the clerk of the trial court and not upon the party appealing.
2. After the approval and filing of the appeal bond and the issuance of the notice of appeal by the clerk to the appellee, the clerk should prepare the records and after their completion submit his bill to the appellant for acceptance and settlement.
This was an action for a divorce on the ground of adultery brought in the Circuit Court of the First Judicial Circuit. Judgment was rendered against defendant who attempted to take an appeal to this Court. The plaintiff in the lower court petitions this Court for the issuance of an order to restore jurisdiction to the lower court on the ground that the appeal has not been completed. The corespondent in the suit in the lower court has been joined with defendant as a respondent. Motion denied.
H. Lafayette Harmon for petitioner. Charles B. Reeves for respondents.
MR. JUSTICE SHANNON delivered the opinion of the Court.
This matter before us is not on a regular or ordinary appeal wherein the dismissal of an appeal is primarily prayed ; but rather is an “Application for Supreme Court’s Order” embodied in a motion and growing out of an action of divorce on the ground of adultery allegedly tried and determined before the Circuit Court for the First judicial Circuit, Montserrado County.
The three counts submitted in said motion embodying the application for the Supreme Court’s order read as follows, to wit :
“1. That at the February term A.D. 1943 of the circuit court for the first judicial circuit, the aforesaid case was duly tried, a verdict rendered and final judgment handed down in favour of your petitioner, to which verdict and final judgment defendant excepted and prayed an appeal to this Honourable Supreme Court, which appeal was granted. “And this the petitioner is ready to prove.
“2. That notwithstanding said final judgment as aforesaid was rendered on the 9th day of March A.D. 1943, yet up to the 13th day of August A.D. 1943 and the 24th day of November A.D. 1943, respectively, the said purported appellants had not completed said appeal in keeping with the statute law of the Republic, in that said appeal was not completed within sixty days or even ninety days, and no notice of appeal served on your petitioner, the purported appellee, nor has the same been done up to the time of the filing of this motion, as will more fully appear by certificates of the clerk of the circuit court herewith made profert and marked exhibits ‘A’ and ‘B’ to form a part of this motion. “And this the petitioner is ready to prove.
“3. That where the trial judge has approved an appeal bond and bill of exceptions in a case, said court loses jurisdiction over the same, which jurisdiction can only be resumed by a mandate from this Honourable appellate Court.
“And this the petitioner is ready to prove.”
The respondents, resisting the motion above, submitted that the facts alleged in the certificates of the clerk of said circuit court were false and misleading in that the accrued costs in the matter had been fully paid according to the bill of costs submitted to them for payment, barring the amounts for several witnesses who had waived same to said respondents ; that respondents had done all that was required of them by law in the taking and completion of their appeal ; and that, if it is true that notice of appeal had not been served as is contended by the petitioner, this was not their fault but rather that of the clerk, an officer of court, whose duty it is to issue said notice, and therefore same should not be made or allowed to operate against their rights and interest in the case.
Further to the above, the respondents submitted that the certificate issued by the clerk of the circuit court and made profert of by the petitioner was issued by the said clerk apparently under the influence and inducement of the said petitioner to facilitate the purposes and objective of the petitioner’s said motion as, in deed and in truth, no such representation as is contained in said certificate was ever made to the said clerk ; and that,
“[W]ith respect to payment for transmission of records in said case, the clerk of the said court has always, according to respondents’ counsel’s knowledge of the practice, prepared records and presented bill therefor, which bill is generally paid by the parties concerned, after their counsel shall have checked said records and found them to be in order, and not before. This, up to now has not been done ; and in several instances which [sic] Counsellor Coleman, counsel for respondents in the matter on appeal before the Honourable Supreme Court, the clerk has made him to understand that he has been compelled to delay in preparing the records due to the volume of work he has on hand, and his lack of assistance ; this being however, the duty of the clerk and taking into consideration the peculiar wording of his letter and certificate in the face of respondent, Adolphus C. Dennis’ reply (exhibit ‘C’) , it would seem collusion or some understanding between the clerk and the counsel for Thomas A. Jackson, plaintiff-petitioner, and that they are in agreement with, working towards defeating respondents’ appeal as put before this Honourable Court.”
Because of the peculiarity in nature of the issues raised in the motion and the resistance thereto, which needed the recording of evidence for their elucidation and clarification, this Court issued a mandate to the trial court to take the required testimony from both sides, which testimony was to be confined and restricted to the points involved in said motion and its resistance, and to make returns to this Court of said record of testimony within a given time. Pending this, the matter was suspended.
Returns having been made to said mandate showing an adherence thereto and compliance therewith, the matter was resumed at this present term of Court and the record of testimony taken in compliance with said mandate was read.
From the several pleadings in the matter as well as from the testimony of witnesses, it has been conclusively shown that the bill of exceptions in the matter has been submitted as well as the appeal bond, both of which have received the approval of the trial judge. As regards the question of nonpayment of the accrued costs in the case, the point seems to be settled in favor of the respondents and against the petitioner by the receipt of the sheriff for the county, given in evidence, which reads as follows :
“Received from Adolphus C. Dennis, co-respondent in the divorce case of Mr. Thomas A. Jackson vs. Pernicia Jackson, for adultery, the sum of sixty one dollars and fifty cents $61.50 U.S. or seventy three dollars and eighty cents Liberian dollars, $73.80 as Court cost in the above mentioned case, and a letter from nine of their witnesses in the said case authorizing me to deduct their fee of four dollars and fifty cents $4.50 which make the total of seventy eight dollars and thirty cents $78.30.
P. J. BRACEWELL,
Sheriff, Montserrado County.
Monrovia, April 13th, 1913.”
When it comes to the question of the lack of issuance of a notice of appeal as is required, whilst it is obvious that such an issue is available only on a motion to dismiss a case which has already reached this Court on an appeal, which is not the case in this particular matter, the Court, besides noticing and remarking about the suave and seductive manner in which it has thus been introduced, does not hesitate to observe that the issuance of notices of appeal is a duty devolving upon the clerk of the trial court and not upon the party appealing.
There appears to have been great stress laid upon the lack of preparation of the records for the appeal, the petitioner placing the blame on the respondents, the respondents placing it on the clerk of court, and the clerk of court claiming his right to payment before the preparation of said records. It is therefore necessary for us to pass upon it for a definite settlement and understanding hereafter.
Rule XXVII of the Rules of the Circuit Court (1912) whereon, possibly, the clerk relies and which reads, “All fees payable to the Ministerial Officer or Clerk of the court shall be paid before rendition of service,” seems not to comprehend the preparation of records on appeal, as there is no mention in the entire set of rules of the preparation of records on appeal by the clerk, so that the clerk is without legal right to demand a fee in advance of work. Besides, it would be rather difficult to estimate the cost of the preparation before the commencement and the completion of the work.
It is the opinion of the Court, therefore, that after completion of the appeal, that is, after the approval and filing of the appeal bond, whereupon the clerk issues the notice of appeal to the appellee, he, the said clerk, should begin the preparation of the records unless there is an express intimation from the party appealing that same should not be prepared, and after completion of the preparation of the records the clerk should submit his bill to the appellant for acceptance and settlement. It is not to be assumed that the clerk will be at the mercy of the party appealing for the settlement of such bills; for, as an officer of court, he is always under its protection in the safeguarding of the rights, privileges, and benefits that are legally his.
In view of the above ruling, the Court is of the opinion that the motion should be denied with costs against petitioner; and it is so ordered. It is further ordered that, because of what appears to be advantage taken of the respondents in the prosecution of their appeal, the clerk of said court is given ninety days from the day and date on which the judgment in this matter is read and filed in the court below to prepare and send up the said records unless an express notice is given by the respondents of their intention or desire to abandon said appeal in which case due information is to be forwarded to this Court, and for this purpose the appeal is to be accounted as being at the state where the appeal bond was approved and filed and the accrued costs paid.
It is necessary herein to warn practicing lawyers to so superintend and supervise their appeals that they will know when an officer of court is doing or omitting to do an act which would be prejudicial to their clients’ interests and thereby said lawyers will be enabled timely to take such course as will secure to them any rights which would be prejudiced by such act or omission of such officer of court.
Motion denied.