T. W. DUPIGNY LEIGH, Curator of Intestate Estates, Montserrado County, Appellant, v. FLORENCE TAYLOR, Widow of the Late C. H. TAYLOR, Appellee.

MOTION TO DISMISS APPEAL.

Argued March 25, 1947. Decided May 9, 1947.

An appeal will be dismissed where there is a failure to file an approved appeal bond, where said bond is defective, or where no notice of appeal is issued, served, and returned.

On appeal from decision in favor of the widow in a case involving a petition to assume the debts and other obligations of the estate of the late C. H. Taylor, motion to dismiss appeal granted.

B. G. Freeman for appellant. T. Gyibli Collins for appellee.

MR. JUSTICE REEVES delivered the opinion of the Court.

When this case was called for hearing on March 25, 1947, counsel for appellee gave notice of the filing of a motion to dismiss said appeal on the grounds that no notice of appeal had been issued, served, and returned since there existed no evidence of same in the records sent forward to this Court and that there was no valid appeal bond, the bond filed being defective in not having the required twenty-five cents revenue stamp thereto affixed.

Appellant filed a resistance, alleging inter alia that the requirement of the statute of 1894 respecting the dismissal of an appeal for the failure of a notice of appeal had been repealed by the statute of appeals passed and approved in 1938, and denying he had filed a defective appeal bond, attaching thereto a certificate from the clerk of the Monthly and Probate Court of Monteserrado County in support of the issuance of said bond. The motion, resistance, and certificate were read and arguments heard thereon.

Counsel for appellant conceded the point that there was no notice of appeal filed with the documents sent forward by the clerk of the court below, but strenuously contended that the statute of 1938 repealed the statute of 1894, and the said statute of 1938 did not assign the failure to issue, serve, and return a notice of appeal as one of the causes for dismissal, but instead stated that such acts, mistakes, or negligence, if found to exist, should be remanded by some appropriate order of the appellate court, since they are acts and omissions of the officers of court and not of the parties. He contended further that the appeal bond filed was valid, for it contained the required denomination of revenue stamps, but was not aware that the certificate of the clerk as attached to his resistance proved that the bond had only twenty cents in stamps affixed.

The Court very much regrets that such mistakes and irregularities occur in the appeal of such a grave nature. Nevertheless, in conformity with the maxim, stare decisis et non quieta inovere, this Honorable Court is compelled to adhere to the prior opinions rendered by the Court in connection with the issue. The sooner the wisdom of legislation provides a more adequate remedy for the security of parties appealing, the better will their interests be enhanced.

This issue has on several occasions claimed the consideration of this Court. We will quote from a recent opinion of the Court delivered at the March term, 1945 in the case Buchanan v. Arrivets, [1945] LRSC 2; 9 L.L.R. 15, wherein Mr. Justice Barclay, speaking for the Court, quoted from the opinion in Johns v. Pelham, [1944] LRSC 15; 8 L.L.R. 296 (1944), and Pelham v. Witherspoon, [1944] LRSC 15; 8 L.L.R. 296 (1944)

“Our recent statute on appeals passed and approved in the year 1938 definitely provides :

” ” ‘That no act nor omission of a Judge nor any officer of Court shall affect the validity of an appeal, but such act, mistake or negligence shall be remedied by some appropriate order of the appellate court so as to promote substantial justice.

” ” ‘That the appellate court might dismiss an appeal upon motion properly taken for any of the following reasons only:

1. Failure to file approved Bill of Exceptions.

2. Failure to file an approved Appeal Bond or where said bond is fatally defective.

3. Failure to pay cost of lower Court.

4. Non-appearance of Appellant.’ ” ‘ L. 1938, ch. III, § 1.

” ‘To all intents and purposes it is obvious that the intention of the Legislature in passing that act was to discourage the dismissal of appeals on technical legal grounds and to give to appellants an opportunity to have their cases heard by this Court on their merits in order that substantial justice be done to all concerned, for in many instances prior to the passage of said act important and far-reaching cases had been dismissed on mere technicalities and appellants had suffered seriously and irreparably because of the fact that from this Court there was no other appeal. Hence it is that the Legislature in said act not only set out definitely the causes for which an appeal should be dismissed, but also went further and gave this Court full authority under certain circumstances to correct or amend errors in order that substantial justice be done.

” ‘In Cyclopedia of Law and Procedure with reference to the construction of statutes it is definitely stated that:

” “Every statute must be construed with reference to the object intended to be accomplished by it. In order to ascertain this object it is proper to consider the occasion and necessity of its enactment, the defects or evils in the former law, and the remedy provided by the new one; and the statute should be given that construction which is best calculated to advance its object, by suppressing the mischief and securing the benefits intended.” ‘ 36 Id. Statutes 1110 (1910).

” ‘In the act of 1938 above quoted which controls appeals to this Court, it is obvious that the Legislature did not intend to make exceptions, for when it inserted the word “only,” it clearly meant that the causes for dismissal set out therein were those which would authorize and warrant the Court legally to dismiss an appeal. It might be contended and was so submitted that the Legislature in framing the act could not foresee every eventuality and consequently did not include other probable good causes. We have no hesitancy in agreeing with the contention, but those causes must be such that to do otherwise would bring about injustice, oppression, or an absurd consequence. The reason of the law should in such cases prevail over the letter. For example, the neglect to serve a notice of appeal on the appellee and the failure to return same by the sheriff has been consistently by this Court upheld as a good cause for the dismissal of an appeal. The Court takes this position because such notice of appeal is considered in the nature of a summons to the appellee, and the service upon him and its return by the sheriff places said appellee within the jurisdiction of this Court. Otherwise an injustice would result to said appellee who might not appear, not having formal knowledge of the notice of appeal, and this Court without the notice of appeal, its service, and returns included in the records sent up would not be advised as to whether or not appellee had been summoned to appear and defend himself and the position or several rulings and judgment of the judge in the court below from which the appeal emanates. Consequently, the failure or neglect to have served and returned a notice of appeal has been by this Court upheld as a jurisdictional ground for dismissal of an appeal.

” ‘ “The record must show that notice of appeal was served as the statute required, and that a proper filing was made, or the appeal will be dismissed for lack of jurisdiction.

” “Since service in the statutory manner is jurisdictional, a failure to comply with a material requirement of the statute defeats its operation. The appellate court acquires no jurisdiction for any purpose, and cannot therefore supply the omission or rectify the defect in the notice.” ‘ 2 Encyc. of Plead. & Prac. Appeals 230-31 (1895). [Johns v. Pelham, Pelham v. Witherspoon, at 304.]

“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. The causes so clearly stated in the act for which an appeal might be dismissed refer to cases in which we already have jurisdiction, not to cases in which jurisdiction is wanting.

The prayer of appellant that we should give some appropriate order for the issuance, service, and return of the notice of appeal is evidence that he still holds the view that the notice of appeal is in the nature of a writ of summons and that therefore its service upon appellee and its return by the sheriff only would give this Court jurisdiction over appellee.

“It is apparent also that appellee’s appearance and motion to dismiss the appeal are not for the purpose of submitting to the jurisdiction of the Court, but only to attack the jurisdiction of the Court over him. This is permissible. Would it then be within the pale of justice and right, at that stage of the case, for us to make an order to the clerk of the court below to issue and have served on appellee a notice of appeal, thereby depriving him of a legal right which has accrued to him through the neglect not only of the clerk of court but also of appellant himself? We think not, for substantial justice should be given to both parties alike.

“In the case Brownell v. Brownell, [1936] LRSC 3; 5 L.L.R. 76, 3 Lib. New Ann. Ser. 53, decided by this Court January 3, 1936, Mr. Justice Dossen, speaking for the Court, quoted the case Moore v. Gross, [1911] LRSC 5; 2 L.L.R. 45, 46 (1911), in which opinion Mr. Justice T. McCants-Stewart said:

” ‘ “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, is ground for the dismissal of the appeal.” ‘ Id. at 82.

“In the case Johnson v. Roberts, [1861] LRSC 4; 1 L.L.R. 8 (1861), this Court laid down the rule that the party appealing should see that all legal requisites are completed.

“Continuing in the case Brownell v. Brownell, supra, Mr. Justice Dossen said :

” ‘It was in pursuance of this rule that when Counsellor Wolo in the case Richards. v. Coleman [1935] LRSC 32; [5 L.L.R. 56, 59] decided on December 13th last, urged that there was a hiatus in the records and we should bridge same by reading thereinto what he considered the missing part of said record, our very able colleague, Mr. Justice Russell, then speaking for all of us, said :

” “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.” ‘ Id. at 82-83.

“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 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.

“As to appellant’s contention that the act of 1938 repealed that portion of the statute of 1894 with reference to notices of appeal, we shall quote what was said by this Court through Mr. Justice Johnson, later Chief Justice Johnson, in the case Brumskine v. Vietor, [1913] LRSC 11; 2 L.L.R. 123, decided June 13, 1913. Said he:

” ‘As to the question raised by appellant that the amendatory Act repealed that portion of prior Act, which referred to justices of the peace, we must observe that ordinarily express language is used where a repeal is intended, and a repeal by implication is not favored, unless the two Acts are irreconcilably inconsistent. The rule is that if two statutes on the same subject can stand together without destroying the evident intent and meaning of the latter one there will be no repeal. . . . In Sedgwick’s work on the Construction of Statutory and Constitutional Law, it is said that “laws are presumed to be passed with deliberation and with full knowledge of existing ones on the same subject; and it is therefore but reasonable to conclude that the Legislature in passing a statute did not intend to interfere with or abrogate any prior law relating to the same matter unless the repugnancy between the two is irreconcilable; and hence a repeal by implication is not favored. On the contrary courts are bound to uphold the former law if the two Acts can well subsist together.” ‘ Id. at 125.

“In our opinion the two acts, that of 1894 and that of 1938, are not irreconcilable with reference to the notice of appeal and can well subsist together. . . .” Id. at 18.

Appellant’s denial that his appeal bond was defective because of the insufficiency of the amount of stamps is negated by the certificate attached to his resistance filed. Said certificate of the clerk of the lower court under seal attached proves that said bond has only a twenty cent revenue stamp thereto affixed, whereas the Stamp Act requires twenty-five cents in stamps to be affixed.

Our recent statute on appeals of 1938 assigns as the second reason for the dismissal of an appeal the following: ” ‘Failure to file an approved Appeal Bond or where said bond is fatally defective.’ ” L. 1938, ch. III, § 1. Appellant’s appeal bond shows that it was duly approved by the trial judge, and obviously it must have been legally stamped when the judge approved it. Notwithstanding this, however, no presumption of such a nature could be accepted to refute the certificate issued by the clerk of the trial court under seal, stating in definite terms that said appeal bond had only a twenty cent stamp affixed thereto, as filed attached to appellant’s resistance. The Court must therefore uphold the statute, and in consequence thereof it rules said appeal bond defective.

In adhering to the opinions quoted supra, which clarify and settle the legal issue of a failure to issue, serve, return, and file a notice of appeal, and in supporting the statute of appeals of 1938 which assigns the failure to file an approved appeal bond or the fatal defect of said bond as one of the causes for dismissal of an appeal, we are of the opinion that the motion to dismiss this appeal is of legal merit and is therefore sustained, and the appeal is dismissed with costs against the aforesaid estate of the late C. H. Taylor of Monrovia ; and it is hereby so ordered.

Motion granted.