MARY KING, Appellant, v. CHARLES D. B. KING, Appellee.

MOTION TO DISMISS APPEAL. Argued June 4, 1975. Decided June 27, 1975. 1. The essential of timeliness relating to a bill of exceptions is that it be tendered to the trial judge within the ten days specified by statute. Appellant mailed a bill of exceptions to the trial judge who was not in the vicinity. The judge appeared to be reluctant to sign the bill and in consequence of the delay appellant was late in filing the bill of exceptions finally approved by the judge. The appellee moved to dismiss the appeal on the ground of failure to timely file. The Supreme Court ruled that the appellant could not be penalized for the tactics of the trial judge and denied the motion. J. Dossen Richards for appellant. and P. Amos George for appellee. MR. Court. JUSTICE HORACE Daniel S. Draper delivered the opinion of the On May 16, 1973, appellee instituted an action for divorce, on the ground of desertion, against appellant. Trial was held during the May 1974 Term in the Circuit Court for the Eighth Judicial Circuit, Nimba County, presided over by Judge Emmanuel S. Koroma. A verdict was returned for appellee, and a final judgment was rendered affirming the verdict. Exceptions were taken to the final judgment and an appeal to this Court was duly announced. Consequently, the trial record was transmitted to the Clerk of the Supreme Court and the case docketed. 234 LIBERIAN LAW REPORTS 235 When the case was called we undertook consideration of a motion to dismiss the appeal on the grounds of failure to timely file a bill of exceptions. Appellant has resisted the motion alleging compliance with the statute and placing the fault on the part of the trial judge, who inexplicably was dilatory in approving and returning the bill of exceptions. Attached to the appellant’s resistance was a photostatic copy of the Post Office registration receipt dated July 9, 1974, at Nimba County, showing the posting of the bill of exceptions to Judge Koroma. To our mind the issue to be resolved is whether the requirements of the law were met by appellant with respect to the tendering and filing of her bill of exceptions. Let us, therefore, examine the law on the point. The 1956 Code of Laws addresses itself to the issue in the Civil Procedure Law in section 1012. “The appellant must tender a bill of exceptions, signed by him, to the trial judge, within ten days after rendition of final judgment. The judge must [emphasis supplied] sign the bill of exceptions (and the appellant shall be entitled to a writ from the appellate court compelling the trial judge to sign such bill if he refuses), but he may note reservations thereon. After the judge has signed the bill of exceptions it shall be filed with the clerk of the trial court.” The present law is contained in Rev. Code 1 :51.7, and is almost word for word the same as the section above quoted, a difference, if it may be called such, being that the current section uses the word “present” instead of “tender” when specifying the time within which the bill of exceptions must be presented to the trial judge for his approval. We hold that the meaning of the two words is the same. We make this point because this Court has clarified the issue in Rottger v. Williams, [1937] LRSC 1; 5 LLR 348, 351 ( I 937) , from which we quote. “Counsel for plaintiffs-in-error prepared his bill of 236 LIBERIAN LAW REPORTS exceptions for the approval of the judge, but it appears that in consequence of the judge’s being inaccessible, the counsel for plaintiffs-in-error could not secure the approval of the said bill of exceptions within ten days. “When said counsel finally met the judge, he informed him of his several fruitless attempts, within ten days, to meet him for the approval of his bill of exceptions and of his failure to so do. “The Court here desires to correct what seems to be a growing error in some quarters that the bill of exceptions in a case must be approved within ten days after final judgment when, according to law, it should be tendered within ten days. Act of 1893-94, to (and), � t. “It appears to us that if it can be proven by a registered letter receipt or otherwise that the bill of exceptions was indeed tendered to the judge of the trial court within ten days, then the date of the judge’s approval does not matter. Provided, however, that should the judge neglect or refuse to endorse thereon the date upon which it was tendered, appellant has a right to apply to the Justice presiding in chambers for a mandamus to compel the trial judge to so do, and if the refusal or neglect can be shown to have been willful, the full Bench, upon the recommendation of the said Justice, may further inquire into the trial judge’s neglect or refusal and punish him therefor.” In his argument before this Court, counsel for appellee contended that the law on tendering and filing a bill of exceptions should be read in context, that is, if the bill of exceptions must be tendered for the trial judge’s approval within ten days, the law contemplates that it must be filed within the same time, otherwise it would mean that after the trial judge has approved the bill of exceptions within ten days appellant could hold it and file it LIBERIAN LAW REPORTS 237 any time he wishes. This argument seems to us to be specious at its best. Of course the bill of exceptions should be filed immediately after its approval by the trial judge within the ten days allowed if there are no attending circumstances to prevent its being filed then. To hold otherwise would be to encourage careless and negligent handling of cases by counsel for litigants. On the other hand, where circumstances have prevented filing within ten days after presenting or tendering the bill of exceptions to the trial judge, and appellant has taken all necessary steps, as has been done in this case, we will not dismiss the appeal. That would be wrong. In Webster v. Freeman, [1965] LRSC 5; 16 LLR 209, 216 (1965) , the Court spoke on the issue raised herein. “This opinion makes no comment on the filing of a bill of exceptions after it has been approved. We must nevertheless express this view, in passing, that if the non-filing of a bill of exceptions within ten days, as this Court has declared it must be done, is due to an act of a court and where the circumstance is not one that imposes on the plaintiff-in-error the duty to compel the judge to approve it within statutory time, it presents an exception to the rule and places no liability on plaintiff-in-error where, under these extraneous circumstances, approval could not be obtained within the ten day period.” As it did in Sauid v. Gebara, [1964] LRSC 18; 15 LLR 598 (1964) when it ruled that where an appellant’s failure to complete the statutory prerequisites for perfection of an appeal is due to the neglect or recalcitrance of a judge or clerk of court, the appellant will not be penalized if he has taken all appropriate legal measures to avert the dismissal of his appeal, including timely application for compulsory process or mandate from the chambers of the Supreme Court to the negligent or recalcitrant judge or clerk ; that where the appellant has failed to take such 238 LIBERIAN LAW REPORTS measures, his failure to perfect the appeal will not be excused by reason of the neglect or recalcitrance of the judge or clerk, and the appeal will be dismissed. Taking into consideration all the foregoing, we hold that the motion to dismiss the appeal be and the same is hereby denied. The case will be heard on its merits at the October 1975 Term of this Court, costs to abide final determination of the case. And it is hereby so ordered. Motion denied.