ISABELLA KARNGA and OLIVIA KARNGA, Substituted Representatives of the Late ABAYOMI KARNGA, Appellants, v. HENRIETTA M. WILLIAMS, W. 0. DESHIELDS, and JAMES DESHIELDS, Jr., Appellees.

MOTION TO DISMISS APPEAL. Argued November 18, 1952. Decided December 12, 1952. 1. Documents or papers proffered for consideration in connection with a record certified from a lower court will be rejected unless a motion for diminution of record is made and granted, in which event the lower court will be ordered to remit the documents or papers in order to correct the record. 2. Matters properly of record will be cognized only by reference to the face of the record. 3. Proper issuance, service and return of a notice of appeal by an appellant are indispensable prerequisites to jurisdiction over an appellee, and not mere technicalities. 4. Material errors or omissions in a record on appeal constitute grounds for dismissal of the appeal where the errors or omissions are due to appellant’s neglect. On motion to dismiss an appeal on jurisdictional grounds, motion granted. N ete Sie Brownell, S. David Coleman, and William A. Johns for appellants. A. B. Ricks, and D. Bartholomew Cooper for appellees. MR. JUSTICE Court.* BARCLAY delivered the opinion of the After several assignments and postponements at the request of the contending parties this case was taken up on November 17, 1952. At the call of the case appellees informed the Court that a motion had been filed that morning to dismiss the appeal. Appellants admitted * Mr. Justice Davis, having been counsel in this case before his elevation to this Court, recused himself. 300 LIBERIAN LAW REPORTS having received a copy but requested that they be given twenty-four hours in which to prepare a resistance thereto in accordance with the rules of this Court. The request was granted. The ground for dismissal, that no notice of appeal had been served on appellants and returned by the sheriff in accordance with the statute, has been ruled on so often that it is hardly necessary to comment thereon except to cite some of the many decisions in which such motions have been sustained. In the present case, however, appellants contended in their resistance that the notice had been served and returned, but that the clerk of court had negligently omitted to send up the copy of the returns; and they thereupon produced a purported copy thereof obtained that morning from the clerk of court. On recourse to the record sent up by the clerk of the lower court and certified as correct, we discovered that there were no such returns therein. Hence, the attempt to have us accept and include in the record the paper submitted by appellants’ counsel was irregular. Furthermore, were we to accept this paper, we would be establishing a dangerous and questionable precedent. This Court will not accept documents or papers brought into Court for consideration as a part of a record certified to us except in the prescribed way, that is, by a motion to the Court for diminution of record. Only when such a motion is granted will this Court order the court below to send up the missing document. And even if the Court is not in regular session, as Mr. Justice Russell, now Chief Justice, declared in Richards v. Coleman, [1935] LRSC 32; 5 L.L.R. 56, 59 (1935) : “There is always a Justice presiding in our chambers who will, if properly applied to, issue the necessary order to a court below to correct any error of that kind inadvertently made by ordering the abridged record sent up or other necessary act done.” See, also: Brownell v. Brownell, [1936] LRSC 3; 5 L.L.R. 76, 83 (1936). LIBERIAN LAW REPORTS 301 Since this procedure is statutory, it is presumably known to appellants. Nevertheless, they evidently neglected to superintend their appeal to see that all necessary papers were sent forward ; for, had they done so, they would readily have observed the absence of the return to the notice of appeal, and would have made the necessary motion for diminution of record. In Hulsmann v. Johnson, [1909] LRSC 3; 2 L.L.R. 20, 21 (1909), we held : “This court takes cognizance of matters of this nature [i.e., of record] only upon the face of certified copies of the proceedings in the lower court transmitted through the proper channel, . . .” In Buchanan V. Arrivets, [1945] LRSC 2; 9 L.L.R. 15, 22, 23 (1945), involving a motion to dismiss an appeal, Mr. Justice. Barclay, speaking for the Court, declared : “Appellant in his resistance has not taken the position that a notice of appeal is unnecessary, but contends that this Court under the act cited is empowered to give the necessary order now, after he is attacked by motion, in order that the said notice be issued, served on appellee, and returned, so as to give this Court jurisdiction over appellee. In our opinion the act of 1938 cited by appellant does not give us authority to correct an error, such as a neglect to issue, serve, and return a notice of appeal, by an order appropriate to give us jurisdiction over appellee after appellee has attacked the jurisdiction of this Court by motion to dismiss the appeal. “And so it appears to us that, where a party in superintending the preparation of the records on appeal, or even after the records are forwarded to this Court, discovers that a notice of appeal is missing and has not been served and returned, upon application properly and timely made to the Justice presiding in Chambers before an attack by motion, the said Justice would 302 LIBERIAN LAW REPORTS hardly hesitate to give the necessary appropriate order for the issuance, service, and return of the said notice of appeal, inadvertently or negligently omitted by the clerk of the lower court.” In Brownell v. Brownell, [1936] LRSC 3; 5 L.L.R. 76, 77, 3 New Ann. Ser. 53 (1936), the motion to dismiss the appeal read as follows : “And also because appellee says that there is no sufficient return made to the notice of appeal showing with that certainty as the law requires that said notice was ever served on appellee and which returns to that effect alone could confer jurisdiction of the appellate court on the appellee; the returns having simply stated that the notice was forwarded to Maryland County to be there served on appellee, and neither the Sheriff of Montserrado County [nor of Maryland County] having made returns that said notice was served on the appellee together with the date of said service. Wherefore appellee respectfully prays that this case be dismissed for want of jurisdiction, and appellant ruled to all costs.” Referring to that count, Mr. Justice Dossen, speaking for this Court, stated (at 5 L.L.R. 77-78) : “In the said count of said motion we observe that the question of jurisdiction as raised by appellee has frequently been before this Court for years; hence we will not enter into an exhaustive comment on same. The jurisdiction of courts over suitors is obtained by means of a writ, which is a mandatory precept, issued usually in the name of the sovereign or state, directed to the ministerial officer, who must not only serve it but make return to the fact that it has been served; therefore courts of justice are bound ex officio to notice the writ as the foundation of its jurisdiction over parties, and for want of jurisdiction may entertain and sustain a motion to dismiss.” LIBERIAN LAW REPORTS 303 In Greaves v. Johnstone, [1913] LRSC 10; 2 L.L.R. 121, 122 (1913), a notice of appeal was found in the record certified to this Court, but no returns. Mr. Justice Johnson, later Chief Justice Johnson, speaking for the Court, stated : “On inspecting the records we find that the notice of appeal was issued by the clerk, but there were no returns thereto or other matter of record to show that the said notice was served upon appellees. It was held by counsel for appellant that as the Act made it the duty of the clerk to issue and serve the notice of appeal the neglect of that officer to perform said duty, should not prejudice the rights of appellant. We must however, repeat the views expressed by the court in the case McAuley v. Laland [1894] LRSC 1; (1 L.L.R. 254) that `while we must admit the dictum of the legal maxim that the act of the court should prejudice no man, we are of the opinion that the acts of the court should be carefully distinguished from the unauthorized, unlawful or neglectful actions of its officers or of the parties of the suits.’ ” The Court held (at [1913] LRSC 11; 2 L.L.R. 123) that “the omission from the records of a return to the notice of appeal is a fatal defect.” Similarly, in Lartey v. Lartey, [1944] LRSC 3; 8 L.L.R. 194 (1944), an appeal was dismissed where a copy of the returns was not found in the record certified to this Court. In Bank of British West Africa, Ltd., v. DaviesJohnson, [1931] LRSC 1; 3 L.L.R. 223 (193 1) , in which the Court, for some reason not expressed in the opinion, backed away from the long line of prior decisions, and held the lack of service and return of a notice of appeal to be a mere technicality, it was Mr. Justice Karnga, in a strongly worded dissent, who supported the prior decisions, declaring (at 3 L.L.R. 229, 233) “It is a well settled principle of law that the procedure necessary to perfect an appeal is usually the sub- 304 LIBERIAN LAW REPORTS ject of statutory regulation . . . and the [appellate] court cannot dispense with any of the prescribed requirements. . . . “After maturely considering this case, we regret we cannot agree with the majority of the Bench to close our eyes and with a single blow over-turn those well settled principles of law which have been handed down by our learned brothers on this Bench from almost the very commencement of the Republic and have since become hoary with age, nor should we make this case an exception to the rule. There is no alternative but to adhere to those sacred principles. To abandon them and pursue a different course would not only cause the practice to be uncertain, but also subject this high Court of last resort to a just criticism of instability and fickleness in its opinions and judgments. We feel bound to support the opinions by this Court and which are also in accord with the common law. It is therefore my opinion that while it is the duty of the clerk to issue the notice of appeal to be served on the appellee, it is also the duty of the appellant to see that it is legally done. No notice of appeal having been issued and served on the appellee within sixty days as prescribed by statute in order to perfect the appeal, this Court can take no jurisdiction over the said appellee. “The Clerk of this Court shall file this dissenting opinion in the archives of this Court and it is so ordered.” This forceful dissenting opinion of Mr. Justice Karnga apparently greatly impressed his colleagues, for we have not been able to discover any subsequent decision wherein this Court again regarded the omission of the issuance, service, and return of a notice of appeal as a mere technicality. Almost from the beginning of the Republic, this Court has consistently held that issuance, service, and return of a LIBERIAN LAW REPORTS 305 notice of appeal are indispensable prerequisites to jurisdiction over an appellee. Appellants herein unfortunately neglected to superintend their appeal and to file the necessary motion for diminution of record as provided by statute. They have no one to blame but themselves for this pitiable position in which they are placed. In Moore v. Gross, z L.L.R. 45, 46 ( 1 9 1 I) , Mr. Justice McCantsStewart, speaking for the Court, held as follows : “While a party cannot be held responsible for an immaterial error or omission made by a clerk of court in transcribing the records on appeal, yet material errors and omissions in the preparation of the record on appeal resulting from the neglect of the party to the action, or his counsel, are ground for the dismissal of the appeal.” Despite this our colleague is reading and filing a dissenting opinion based principally upon the following grounds : I. We should have accepted the purported copy of the returns as submitted by appellants since that paper was certified by the clerk of court. 2. Because appellants previously had filed a motion to dismiss based on some alleged defect in the appeal bond regarding the sureties, and subsequently had withdrawn the motion and filed the motion to the jurisdiction, appellees had been placed within the jurisdiction of the Court, and therefore we should deny the motion. We deem it necessary to clarify our position in the matter. As to the first point, our distinguished colleague contends that we should have accepted and included in our record certified to this Court by the clerk of the lower court a purported copy of the returns to the notice of appeal, also certified by the same clerk after same had been attacked for its absence, and after appellants had gone to the clerk of the trial court and arranged for and obtained an alleged copy thereof. Our contention is that the act 306 LIBERIAN LAW REPORTS of appellants was not only irregular, but was also adroitly calculated to establish a dangerous and questionable precedent. Our learned colleague insists that we should have suspended the case and inquired of the clerk of the lower court whether the allegations of appellees were correct and requested that he forward the missing document. He stated that this was the procedure in two other cases which he cited. Although this procedure would have been irregular in the light of former decisions on that point, nevertheless, such a course was neither requested by appellants nor suggested by any of the Justices, including our dissenting colleague. In Brownell v. Brownell, supra, an offer was made by appellant’s counsel, but refused by the Court. Furthermore, appellants, in their resistance, contended as follows : “1. Because appellants say the notice of appeal was duly issued and served on James DeShields, Jr., one of the appellees, and returned on June 23, 1952, by Sheriff Urias Dixon, himself, as will more fully appear by inspection of the original now filed in the office of the clerk of the circuit court, a certified copy of which is annexed and marked Exhibit ‘A’ to form a part of this resistance.” The words, “now filed,” admit of no other meaning but that the notice of appeal was just then filed in the office of the clerk of the circuit court, after attack by appellees, and after appellants had arranged for same. Mr. Justice Karnga in his dissenting opinion in Bank of British West Africa, Ltd., v. Davies Johnson, [1931] LRSC 1; 3 L.L.R. 223, 233 (1931) declared with reference to courts : “On this point we should remark that the term court is derived from the Latin word Curia, and may be defined as follows : `. . . 2. The place where justice is judicially administered. 3. The judges who sit to administer justice; and, in jury trials, the judge or presiding – LIBERIAN LAW REPORTS 307 magistrate, as opposed to the jury. . . Mozley and Whiteley, Law Dictionary, ‘Court.’ “It is the judge therefore who constitutes the court– it is his acts that should not prejudice parties litigant.” Hence it is obvious that the cases cited are not to the point, since the case at bar only refers to the acts of the clerk and sheriff, and not to courts. As to the other point which our distinguished colleague stresses, we regret that we are unable to agree. In that instance also, the resistance was conspicuously silent, and appellants did not raise or call attention thereto directly or indirectly during the whole course of their argument; nor did the Court do so when appellees made their opening and closing arguments so as to give them an opportunity to defend their position. Furthermore, as admitted by our dear and learned colleague, the question did not even come up in our deliberations and discussions in chambers at the time a decision was made as to the disposal of the motion. After the majority opinion had been prepared, circulated, and turned over to our chief clerk for stenciling, we were greatly surprised when we were courteously handed the dissenting opinion to read, and saw the issues upon which our learned colleague had based his dissent. In fact we did not understand our colleague to say that he was dissenting until after he had been sent our opinion to read and to make any necessary suggestions. Even then, he did not mention the issue taken up in his dissenting opinion, but returned the opinion with the notation that he was dissenting. Hence we are adamant in our conclusion that, since this point had not been discussed previously, it is out of place in the dissenting opinion; and this is the opinion of the Court. As to the law cited by our dissenting colleague, we quote from King v. Williams, [1925] LRSC 8; 2 L.L.R. 523, 525 (1925) “A court which is competent to decide on its own jurisdiction in a given case may determine that question at any time in the proceedings of the case, whenever that 308 LIBERIAN LAW REPORTS fact is made to appear to its satisfaction, either before or after judgment.” The following statute is also pertinent : “A verdict and judgment in ejectment shall be evidence, but not conclusive evidence of title, but two verdicts in actions between the same parties or those under whom they claim, in favor of the same side, shall be conclusive, unless it is shown that there has been a verdict and judgment the other way, and even in that case, three similar verdicts and judgments shall be final and conclusive.” 1841 Digest, pt. II, tit. II, ch. XI, � 20; z Hub. 1552. Our records in this case show that appellees already have obtained two verdicts and two judgments in their favor, and the other side has obtained none. The appeal is dismissed with costs against appellants; and it is hereby so ordered. Motion granted. MR. JUSTICE SHANNON, dissenting. This is a case in which a motion for the dismissal of the appeal is filed because, according to the records certified to us, it does not appear that a notice for the completion of appeal was ever issued, served on the appellees and returned, as the law directs. My colleagues have decided to grant same and dismiss the appeal despite the resistance filed which shows that such a notice was issued, served, and returned. This is shown by a copy of said notice issued, served and returned, which appellants proffered, and which carries on its back the following return as evidence of its service on said appellees : “On the 23rd day of June, A.D. 1952 I duly served the within notice of appeal, by leaving a copy of the said notice of appeal with Mrs. Henrietta Williams, and another copy with Mr. James DeShields, Jr. And I now submit this as my official return. Dated this 23rd LIBERIAN LAW REPORTS 309 day of June, A.D. 1952; Sunday being the 22nd day I could not and did not serve the notice on that day. “[ Sgd.] URIAS DIXON Urias Dixon ” Sheriff, ,Mo. Co. “Certified true copy. [Sgd.] ALFRED RAYNES Clerk, Civil Law Court.” This return was not certified on the back of the copy of said notice found in the records certified to us, which accounted for the motion of appellees. An inadvertence was obviously committed by the clerk of the trial court who transcribed said records since it is the same clerk who issued the said certificate to appellant. This shows that the said notice was issued, served, and returned as above. My colleagues have refused to accept this certificate. Apparently their reason is that the returns were not brought in by remedial process before the case was called, since it is the duty of appellants to superintend appeals. In addition my colleagues are of the opinion that this particular act is tainted with suspicion and possible fraud because of the technical interpretation which they place upon a count of the resistance wherein appellants refer to a copy of the original “now filed” in the office of the clerk. It is easier to assume the inadvertence of the clerk in omitting to type the returns of the sheriff on the back of the copy of the notice than to presume fraud or suspicion from his making the certificate, knowing what the penalty against him would be were he discovered to have issued an untrue, incorrect, and fraudulent certificate. Another fact, which is apparent from the records of which my colleagues have refused to take judicial notice, is that appellees, before filing this motion to dismiss, had submitted themselves to the jurisdiction of the appellate court. Before this case was called for hearing, on October 22, 1952, appellees filed in this Court an “Application for Verification of Appeal Bond Given by Appel- 310 LIBERIAN LAW REPORTS lants,” which motion was countered by a resistance later filed. The records show that arguments commenced thereon but, before decision, appellees withdrew said application and substituted the instant motion. This Court has repeatedly held that notice of the completion of appeal is a jurisdictional step, and its service alone confers jurisdiction. In my opinion, however, an appellee who files one or more pleadings thereby submits himself and ought not thereafter be allowed to raise the issue of jurisdiction over his person. This Court held in King v. Williams, [1925] LRSC 8; 2 L.L.R. 523, 525 (1925) “The general rule is that if a defendant, though not served with process, takes such a step in an action, or seeks such relief at the hands of the court as is consistent only with the proposition that the court has jurisdiction of the cause and of his person, he thereby submits himself to the jurisdiction of the court, and is bound by its action as fully as if he had been regularly served with process. . . . Where a party to a judicial proceeding admits by some act or conduct the jurisdiction of the court, he may not thereafter, simply because his interest has changed, deny the jurisdiction, especially where the assumption of a contrary position would be to the prejudice of another party who has acquiesced in the position formerly taken.” Appellees, having submitted themselves to the jurisdiction of this Court by filing an application for verification of the appeal bond, which was resisted, and on which briefs were filed, but which they withdrew, are bound as fully as if they had been regularly served with process. It is unfair for my colleagues to assert that I never gave notice of a dissent until they had prepared their opinion. They seem to overlook the fact that I intimated my disagreement when we voted, and I even suggested that we take the same position which we took in the two LIBERIAN LAW REPORTS 311 cases referred to in the majority opinion. At this stage one of the Justices stated that our colleague, Mr. Justice Davis, was responsible for that procedure but he was not in favor of it, a procedure which, of course, the said majority opinion now justifies. Whether the issue of submission of the appellees to the court’s jurisdiction was raised in the appellants’ resistance or in our discussion in chambers is irrelevant. The question is whether the appellees, by any act of theirs, submitted themselves to the jurisdiction of this Court. We must also consider whether it is too late to question the propriety of deciding the issue because it was not brought to the attention of the Court until after the preparation of the opinion but before its delivery. I consider this a question of law which was overlooked and which could be considered even if it were raised after the rendition of judgment. In King v. Williams, supra, which my colleagues cited as a basis for their decision, this Court declared (at [1925] LRSC 9; 2 L.L.R. 525) “A court which is competent to decide on its own jurisdiction in a given case may determine that question at any time in the proceedings of the cause, whenever that fact is made to appear to its satisfaction, either before or after judgment.” (Emphasis added.) Thus there would be no legal ground for refusing to consider the question of jurisdiction at any stage of the case, before or after judgment. A court should never encourage a party to question or attack its jurisdiction where said party by his prior acts already has submitted himself to said court’s jurisdiction. When appellees filed an application to verify appellants’ appeal bond, they waived the question of the service or lack of service of a notice of the completion of the appeal. Because of the above, I. have dissented from my colleagues, and hence this opinion.