HENRY S. KOLENKY, Appellant, v. LIBERIAN EASTERN TIMBER CORP. (LETCO), Appellee.

APPEAL FROM THE CIRCUIT COURT, SEVENTH JUDICIAL CIRCUIT, GRAND GEDEH COUNTY. Argued April 3, 1973. Decided April 26, 1973. 1. A complaint in an action is subject to dismissal when the defendant has not been properly summoned. After prior unsuccessful actions brought by the appellant herein against the same defendant, he commenced the present action in ejectment, also alleging substantial damages. The suit was dismissed in the lower court on the argument raised in the answer, alleging failure to have summoned the defendant at least fifteen days prior to the first day of the term of court for which the case was venued. The judgment was affirmed. David D. Gbala for appellant. Frank W. Smith for appellee. MR. JUSTICE WARDSWORTH delivered the opinion of the Court. On December 23, 197o, following the dismissal of a $5,000.00 suit for damages before the County Superintendent, appellant instituted an action of ejectment against appellee, this time claiming damages in the sum of $1,9oo.00, which amount he claimed was to compensate for trespass and for digging–in the soil. After the defendant filed an answer to the complaint, raising several issues of law, and before the case could be called for disposition of the issues of law during the February 1971 Term of court, plaintiff withdrew his ejectment suit with reservation and paid the costs. 103 104 LIBERIAN LAW REPORTS On April 25, 1972, appellant filed another ejectment suit against appellee. This time appellant claimed damages in the amount of $18,000.00, representing rent owed and damage to the soil. This case was heard on June 8, 1972, and the trial judge dismissed the complaint. Plaintiff noted exceptions and announced an appeal to this Court. The most salient point raised by defendant in his answer is embodied in count one thereof, in which defendant averred that the complaint was filed only twelve and not fifteen days before the formal opening of the May Term, as required by law. According to the record certified to this Court, we notice that the complaint in these proceedings was filed in the clerk’s office on April 25, 1972, whereupon a writ of summons was duly issued and served and returns made thereto by the ministerial officer of court, which averred that the service thereof was effected on April 22, 1972, which is impossible because it is evident that the service of a precept follows the issuance thereof. Consequently, it is not possible for the service to precede issuance. Computing the time of the filing of the complaint and the first day of the opening of the May 1972 Term of court, we find that the fifteen days prescribed by statute which should be allowed any defendant prior to the first day of the opening of the term of court to which the summons is made returnable was not allowed in this case. From April 25, 1972, the day of filing the complaint to the second Monday in May, which was May 8, is only thirteen days. In Yangah v. Melton, 12 LLR r 28, 131-32 (1954), this Court addressed itself to this point. ” ‘It is obvious that the court could have no jurisdiction over a person not legally summoned under the statute above quoted, consequently it could exercise no power in such a case.’ LIBERIAN LAW REPORTS 105 “The reason for the foregoing rule is plain and the principle elementary. The statutes allow a defendant four days after being summoned to appear and give notice of his intention to contest the suit brought “against him, and ten days within which to file an answer. Adding these together, and taking into consideration the day on which he is summoned, we have fifteen days. Therefore, if a defendant does not have fifteen days from the day he is summoned to the day of the opening of the term of court to which he has to defend himself, or answer the complaint of plaintiff, the law presumes that he has not had sufficient time to prepare an adequate defense, and therefore disfavors his being ushered into court in such a state of unpreparedness.” Therefore, in view of the foregoing, the ruling of the trial judge is hereby affirmed, with costs against appellant. It is so ordered. Affirmed.