LAURA KING, HENRY T. HOFF, and T. EDWIN SWEN, as successors to EDITH HERRON, ELIZA JACKSON, and REGINALD JACKSON, as Administratrix and Administrators of Z. A. JACKSON, Intestate, Appellants, v. ADELAIDE E. MORRIS, Appellee.

MOTION TO DISMISS APPEAL FROM THE MONTHLY AND PROBATE COURT, MONTSERRADO COUNTY. Argued April 30, 1969. Decided June 13, 1969. 1. A motion brought in a proceeding alleging lack of jurisdiction in the court takes precedence in the matter before any court. 2. Failure to serve a notice of appeal and file proof thereof, are grounds for dismissal of an appeal. During the pendency of an appeal from the Monthly and Probate Court of Montserrado County, a motion was made by the appellee to dismiss the appeal for failure of the appellant to have served a notice of appeal and to have filed proof of service with the clerk of the court. Motion granted, appeal dismissed. Samuel B. Cole for appellants. Phillip Brumskine for appellee. MR. JUSTICE MITCHELL delivered the opinion of the court. This case originated in the Monthly and Probate Court for Montserrado County, during its February 1967 Term. It grows out of a petition filed by Adelaide Morris, petitioner, against Laura King, Henry T. Hoff, and T. Edwin Swen, as successors to Eliza Jackson, Edith Herron, and Reginald Jackson, as administratrix and administrators of the estate of Z. A. Jackson, which petition avers: “1. That she is the owner in fee of sixty acres of 306 LIBERIAN LAW REPORTS 307 land situated in the Township of Paynesville ; the said property having been sold in the year 1922 by one R. H. Jackson and his wife Janie Jackson, as heirs of one Z. A. Jackson, to her late grandfather, J. J. Morris, who willed it as ‘Adelaide Farm’ to her late father J. L. Morris, who, in turn, was bequeathed the same in fee after the death of her mother, Maude A. Morris, who also in her last will and testament confirmed said bequest. All of which more fully appear from exhibits A, B, C, and D, proferted herewith. 2. That by virtue of letters testamentary issued by the court to respondents as administratrix and administrators of the estate of Z. A. Jackson, and in spite of their knowledge of the premises laid in count hereof, respondents have, in a subtle attempt to deprive your petitioner of her said property and unjustly enrich themselves, included petitioner’s said sixty acres in their inventory and begun selling petitioner’s said property as they had similarly done in the case of thirty-six acres owned by J. B. Trinity of this City. “Wherefore, petitioner respectfully prays this court to order the said administratrix and the administrators to exclude from the said inventory petitioner’s sixty acres of land and to grant unto her such other and further relief as this court may deem legal, just and right.” Pleadings in this matter progressed as far as the rebutter, and thereafter the Probate Commissioner disposed of the matter in the following decree : “The court says that pleadings filed in this court are ex parte in nature and the court accepts them as such until they are challenged. This court has concurrent jurisdiction with the Civil Law Court. This court in Montserrado County is the only court vested with authority in all matters touching estates, be they testate or intestate. But it is not within the compe” 308 LIBERIAN LAW REPORTS tency of this court to pass upon title. In the case at bar, the only deed made profert of in the entire pleading is an alleged deed from R. H. Jackson and his wife to J. J. Morris. Since there is no other deed to show that title is now vested in Jackson’s estate, which would have necessitated the court to refuse to pass upon the issue because title would have to be proved before the court, the court orders the sixty acres made part of the inventory filed in this estate excluded. And it is hereby so ordered. “To which ruling of the court counsel for respondent excepts, praying for an appeal to the Supreme Court of Liberia. “Given under my hand and seal of court this 3rd day of May, 1967. “[Sgd.] J. GBFLEN DAVIES Judge, Monthly and Probate Court.” From this decree of the Probate Commissioner, respondents excepted and appealed their cause to this appellate court. Upon the call of this case, our attention was drawn to the fact that the appellee had filed a motion to dismiss the appeal, which, according to our system, is precedent to argument. The motion’s grounds are : “1. Because appellee says, that although appellants excepted to and announced an appeal from the final ruling rendered against them by the trial judge on May 3, 1967, as is evident from the record in this case, and filed their bill of exceptions and appeal bond in the office of the Clerk of the Monthly and Probate Court for Montserrado County, they have failed and neglected to complete said appeal, as the law requires, in that no notice of appeal has been issued and served on her as the law directs, which notice alone would place her under the jurisdiction of this Court, as will more fully appear by the certificate issued by S. E. LIBERIAN LAW REPORTS 309 Williams, Clerk of the Monthly and Probate Court for Montserrado County, annexed hereto and marked Exhibit A to form a part of this motion. “2. And also because appellee says, that by virtue of the facts stated in count i hereof, this Court should refuse jurisdiction over the appeal because of the complete absence of the issuance, service and return of the notice of appeal, which under our statutes and the several decisions of this Court, constitutes legal grounds for the dismissal of an appeal.” To this motion to dismiss, the appellants filed their opposition, alleging that the notice of the completion of the appeal was issued, served and returned by the ministerial officers of the court below, and that the certificate issued by the clerk of the Probate Court below, made profert with appellee’s motion, is false and misleading. Lastly, that the said clerk of the trial court was forced and coerced into issuing the said certificate. Upon inspection of the certificate in question, it is found to be genuinely issued under the signature of the clerk of the Probate Court and the seal of the court. Hence, we have no alternative but to accept the fact that the notice of the completion of the appeal was never served and returned as the law requires. According to our practice, a motion taken to the jurisdiction of the court must have priority before any court. The record before us shows no proof that the notice of appeal was served and proof thereof filed, a ground for dismissal of an appeal. In Roberts v. Brown, [1963] LRSC 40; 15 L.L.R. 415 (1963), the Court said, at 419: “Under the 1956 Code, tit. 6, � 1020(d), a civil appeal from a court of record may, upon motion properly taken, be dismissed for negligent failure to have notice of appeal served on appellee. ” ‘The omission from the records of a return to the notice of appeal is a material error, and is ground for 310 LIBERIAN LAW REPORTS dismissal of the appeal.’ Greaves v. Johnstone, 2 L.L.R. 121 (1913). ” ‘ It is the service of the notice of appeal which alone gives the appellate court jurisdiction over the – appellee.’ Brownell, v. Brownell, [1936] LRSC 3; 5 L.L.R. 76 (1936) . ” ‘The only legal evidence of such service is the official return of the proper ministerial officer.’ Brownell v. Brownell, Id.” By virtue of the foregoing, the motion to dismiss is sustained and the appeal is hereby dismissed, with costs against the appellants, and the clerk of this Court is hereby ordered to send a mandate to the trial court informing it of this opinion. And it is hereby so ordered. Motion granted, appeal dismissed.