JEANNIE McBOUROUGH, Appellant, v. TOM BEON NIMLEY, Appellee.

APPEAL FROM THE MONTHLY AND PROBATE COURT OF MONTSERRADO COUNTY. Argued March 27, 1963. Decided May 9, 1963. 1. When the specific amount of the obligation undertaken by sureties signing an appeal bond has not been written into the bond prior to its execution by the sureties, the bond is fatally defective, and the appeal will be dismissed for lack of jurisdiction. 2. The defectiveness of an appeal bond from which the specific amount of the obligation undertaken by the sureties was omitted at the time when the bond was executed cannot be cured by the court’s subsequent fixing of the amount and approval of the bond. On appeal from an order of the probate court denying objections to the registration of a warranty deed and admitting the deed to probate, appellee’s motion to dismiss the appeal for defectiveness of the appeal bond was granted, and the appeal dismissed. G. P. Conger-Thompson for appellant. Richardson for appellee. MR. CHIEF JUSTICE WILSON A. Gargar delivered the opinion of the Court. Before reviewing the merits of this motion and rendering judgment thereon, I consider it necessary to state that the preparation and circulation of a dissenting opinion before the majority opinion has been drawn and circulated strikes us as a method of procedure unprecedented in the practice of this Court. The more so is such procedure strange and irregular because a dissenting opinion is intended to express disagreement on a decision previously reached by a majority vote; and until the text of 366 LIBERIAN LAW REPORTS 367 the majority opinion has been served on the dissenter, there can be no opinion from which to dissent. But we shall refrain from further comment on this novel procedure, although we maintain that it is a novelty and an irregularity. The instant proceedings were commenced by the filing of objections to the probation of a warranty deed for Lot Number 8o, Monrovia, following a caveat that had been previously filed to prevent the probation of the deed in question by appellant, through her counsel, G. P. Conger Thompson. The objections were resisted in an answer filed by appellee through his counsel, A. Gargar Richardson, and replied to by appellant, the pleadings resting with appellant’s rebuttal. On March zo, 1961, Commissioner J. Gbarflen Davies of the Monthly and Probate Court of Montserrado County entered ruling on the law issues, denying said objections, and ordered the deed to probate and registration, nunc pro tunc. To this ruling, the objectant excepted and appealed to this Court for review. When the case was called for hearing by this Court, the appellee filed a motion to dismiss the appeal on the ground that the appeal bond tendered and filed by appellant was fatally defective, in that it did not contain an indemnity clause; nor was the amount of the penalty of said bond, inserted in the body of said bond; but rather, same was incorporated into the approval clause of the probate commissioner which procedure appellee considered to be a violation of the statutes controlling as construed in a recent decision of this Court. (Mark-Reeves v. Republic, i 5 L.L.R. 229, 343 [1963]). Appellee also contended, in said motion, that an appeal bond in civil cases must state specifically the amount for which the sureties to the appeal bond obligate themselves to be held responsible should appellant fail to prosecute his appeal, since an appeal bond is in the nature of a contract; and that, therefore, the indemnifying amount to 368 LIBERIAN LAW REPORTS bind the sureties should not be merely inserted in the approval clause of the bond after the sureties have already signed, in their absence, and without their knowledge. Appellant, in resisting said motion, maintained that the original bond filed in the court below did, in fact, carry the amount of $600 as the indemnifying figure, independently of the amount named and inserted by the judge in his approval clause. Appellant thus joined issue with appellee as to whether the figure of $600 as the penal sum of the bond was actually inserted in the original bond from which a transcript was made to this Court. The clerk of the Court was instructed to issue a summons commanding the clerk of the probate court to appear and produce the original bond filed by appellant. The clerk having duly appeared, it was observed, upon our inspection of said bond, that the figure of $600 did, in fact, appear in the body of the bond independently of the figure of $600 inserted in the approval clause by the probate commissioner. The clerk was then called upon to explain how it was possible for her to have transmitted to this Court a copy of the record certified by her under seal of court containing an appeal bond, with no figure named in the body of said bond, whereas the original bond she had presented to us contained the figure of $600 in its body. The clerk explained that the figure of $600 was not in the original bond at the time of filing, and until about two days before the motion to dismiss the appeal because of the omission of any penal sum in the body of said bond was assigned for hearing, and that she was at a loss to know how said figure had found its way into the record. Since this necessitated an investigation, the Court called upon counsel for appellant to explain how it was possible for a figure which was not in the bond when it was filed to have been inserted long after the bond had been filed and the record transmitted to the Supreme Court, after he, in resisting the motion had stated defi- LIBERIAN LAW REPORTS 369 nitely that said original bond in the record did carry the figure of $600 in its body. Counsel was not able to convince this Court that the figure was placed in the body of the bond before filing; nor did he know by whom said figure was inserted after filing. The assistant clerk of court, who generally handles the record in association with the clerk, made an effort to prove that appellant’s counsel called at the clerk’s office and asked to inspect the record, thereby apparently suggesting the possibility that said figure could have been inserted during such inspection. We were not sufficiently convinced that, during said visit to the clerk’s office, the appellant’s counsel could have made this insertion, since his denial of having handled the record when he made the visit was not successfully rebutted by the assistant clerk. Hence, the mystery remains unsolved. We must, nevertheless, conclude (appellant’s counsel having failed to prove the contrary) , that at the time of the filing of said appeal bond, the penal sum of $600 which now appears in the original bond had not yet been inserted in the bond, and that this was stealthily done after the filing of the motion to dismiss the appeal. Moreover, because of appellant’s obvious interest in defeating said motion, it is difficult to remove the impression that appellant’s counsel had some knowledge not fully revealed to this Court concerning the means employed to insert said figure in the body of the bond after it had been filed. Consequently, we must reject appellant’s contention that said figure had been inserted in said bond prior to the time of filing. Whilst it has always been the policy of this Court to discourage the dismissal of appeals where the motion to dismiss is unmeritorious, or raises matter that does not go to the merits of the case, or is not supported by statute, this Court would be remiss to ignore a mandatory provision of the statute which defines the grounds on which appeals may be dismissed, where essential jurisdictional 370 LIBERIAN LAW REPORTS steps are flagrantly disregarded by appellants. The statutory provisions, so often cited in opinions of this Court, which set forth the grounds on which appeals may be dismissed upon motions properly taken, read as follows : “Every appellant shall give an appeal bond in an amount to be fixed by the court, with two or more legally qualified sureties, to the effect that he will indemnify the appellee from all cost or injury arising from the appeal, if unsuccessful, and that he will comply with the judgment of the appellate court or of any other court to which the case is removed. Such bond shall be approved by the trial judge and filed with the clerk of the court within sixty days after rendition of judgment.” 1956 Code, fit. 6, � 1013. “Failure to file an appeal bond within the specified time or filing of an insufficient bond shall be grounds for dismissal of appeal.” 1956 Code, tit. 6, � “An appeal from a court of record may, upon motion properly taken, be dismissed for any of the following reasons only : “(b) failure to file an approved appeal bond or material defect in such bond ;” 1956 Code, tit. 8, � 380. There can be no bond until it has been executed ; nor is the execution complete until the amount fixed by the judge has been inserted by the appellant and signed by two or more sureties whose signatures to the bond cannot obligate them to the appellee until the penal sum of the bond has been fixed by the court and inserted by appellant, thereby placing said sureties in a position to know to what amount they have bound themselves in the event of default on the part of the principal-appellant. The approval by the court of the bond is a separate and distinct act which is performed after all the requirements LIBERIAN LAW REPORTS 371 of the law for the execution of said bond have been met; and this includes the amount named by the court and inserted in the bond by appellant which amount constitutes the sum for which appellee is indemnified by appellant, and has a right to recover in the event of appellant’s failure to prosecute the appeal or lack of success in recovering against appellee. It would therefore be unjust and illogical to hold that the mandatory and jurisdictional requirements of the statutes cited supra can be satisfied by fixing the amount of the bond merely in the approval clause of the judge, which is outside of the body of the bond ; and this Court so held in Mark-Reeves v. Republic, L.L.R. 229,343 (1963) Our learned colleague, in his dissent prepared prior to the completion of this opinion, contends, inter alia, that the question of whether an appellant has anything to do with the fixing of the sum in the appeal bond is immaterial so long as the statutory purpose of indemnifying the appellee is substantially fulfilled. But this could not have been the intention of the Legislature. The dissenting opinion confuses the argument a priori by raising a sentimental hypothesis that does not conform with the main issue before this Court. In view of the fact that a bond is a contract which binds the sureties, a contract which must provide a penal sum to be paid by the sureties in the event of default by the principalappellant, it would be unreasonable and illogical to hold that prior knowledge and consent of the sureties to that bond is not necessary before they subscribe thereto and before said bond is approved by the trial judge. The argument of our learned colleague to the effect that no sensible person would agree to affix a signature to any bond, knowing that it entails the surrender of his property in case of default, without being sure to what extent he had thereby involved himself, would lead us to the logical conclusion that no surety could be held bound by any bond approved by a judge, or to any amount of penalty set by 372 LIBERIAN LAW REPORTS the judge in approving the bond after it had been signed by said surety; hence, the only sensible and logical conclusion would be (and this has been a practice hoary with age throughout this jurisdiction) that when a bond is required to be executed, the principal (the appellant, in the case of an appeal) , after executing said bond, ascertains from the court the amount to be placed in said bond, which amount, after having been fixed, is placed in the body of the bond before obtaining the signatures of sureties, so that the sureties can know the extent of the indemnification to which they are binding themselves. It is designed to confuse and mislead when one contends that fixing the amount by the judge signifies his approval thereof and incorporates the amount at the time of such approval. This contention is obviously argumentative, and therefore is not worthy of any further comment by us, since the only point to be decided in this case is whether or not said bond was legally executed. Such execution is definitely incomplete where the body of the bond does not carry the figure named or fixed by the trial judge, as in the instant case; nor can it bind the sureties to said bond where there is a default, they not having subscribed to any penal sum before the approval by the judge. Because the foregoing embraces the main and pertinent issues involved in this motion, we would finalize this opinion at this point without further comment, but for the lengthy and argumentative dissenting opinion, which is capable of misleading because of its misinterpretation of the statute controlling on the point. We will therefore proceed to traverse some of the highly irrelevant and argumentative comments of our learned colleague. Reaching conclusions by conjectures and hypothetical theories, as our learned colleague had done almost throughout his dissenting opinion served on us, is a departure from the approach to the true meaning and intent of the statute which has been upheld in a long line of LIBERIAN LAW REPORTS 373 decisions by this Court. Let us quote, for argument’s sake, some of the inconsistent propositions he advances : “I cannot bring myself to believe that any judge would approve an appeal bond without sureties having signed it; nor do I believe, that any sensible person would agree to affix his signature to any bond, knowing that this act entailed the surrender of his property in case of default, without being sure to what extent he had thereby involved himself. . . . But where a surety undertook to sign blank bond [to secure an appellee on appeal] how could he . . . blame anyone for having obligated him beyond his capability to pay? In fact how could he, thereafter, contend ignorance of the amount the bond had obligated him for under his signature voluntarily affixed to the document? . . . These are only issues in passing, since the sureties to this appeal bond have not sought to repudiate their signatures; nor have they claimed ignorance of the amount in which their bond bound their principal to indemnify the appellee.” I surmise that if the sureties to this defective appeal bond had repudiated their obligations for settlement of the penal sum of the bond physically inserted by the judge without their knowledge, our dissenting colleague would have taken a different position. Again, our colleague’s correct contention that the signing of a bond by a surety without knowledge of the penal sum, or to use his own words, a “blank bond,” would be a risk that no sensible person would take, simply sustains our construction of the meaning of the statute, to the effect that fixing the amount of the bond could not mean a physical insertion of the amount, where it belongs, in the body of the bond, only at the time of judicial approval thereof. Not until after compliance with all the essential requirements, such as insertion of the amount by which the appellee is to be indemnified, the sureties being then 374 LIBERIAN LAW REPORTS in knowledge of what the penal sum is, could the bond be considered as having been properly executed and presented to the court for approval. To hold otherwise would be to invite the speculation of risk to which our dissenting colleague has correctly referred. In view of the foregoing, and predicated on the law cited and quoted, supra, we have no alternative but to conclude that the appeal bond filed in this case was fatally defective, and that this constitutes sufficient legal ground for the dismissal of said appeal. The motion to dismiss the appeal is therefore granted; and the court below is hereby directed to enforce its judgment with costs against appellant. And it is so ordered. Appeal dismissed. MR. JUSTICE PIERRE, with whom MR. JUSTICE WARDSWORTH concurs, dissenting: This is another case heard during this term of Court in which I find myself in fundamental disagreement with the majority of my colleagues. As in the other case, the subject of our disagreement concerns grounds laid in motions to dismiss appeals. I feel that, in both of these cases, the Court should have ordered the filing of briefs, so that the merits of the appeals could be looked into. I also feel that, in both cases, the motions to dismiss lacked sufficient grounds. I have always contended that appellants have an inherent right of review, which right is not discretionary either with the trial or appellate court, but is guaranteed to every litigant in every case except those heard and determined by the Supreme Court. It follows that motions to dismiss appeals on grounds which show little, if any, reasonable basis should be discouraged, to the end of affording losing parties every opportunity to have their appeals heard, especially where such hearings do not infringe the trial rights of the appellees, and where all steps LIBERIAN LAW REPORTS 375 incident to the appeals are taken in conformity with statutory requirements. In the present case, the motion to dismiss the appeal alleges that, because the appellant failed to insert an amount as penalty in the body of the bond, even though the judge had approved it for a sum sufficient to indemnify the appellee against cost and injury, the bond was defective by reason of such absence of a sum in its body, and therefore the appeal should be dismissed. It is on this one point, which I regard as elementary, that I have differed with my colleagues who have decided to grant the motion to dismiss the appeal. Our statute requires that, in civil cases such as this, the appealing party should indemnify the successful party from costs and injury growing out of the appeal; that the sum of indemnity should be fixed by the trial court; and that the judge should then approve the bond, thereby validating the undertaking. Here is the statute on the point: “Every appellant shall give an appeal bond in an amount to be fixed by the court, with two or more legally qualified sureties, to the effect that he will indemnify the appellee from all cost or injury arising from the appeal, if unsuccessful, and that he will comply with the judgment of the appellate court or of any other court to which the case is removed. Such bond shall be approved by the trial judge and filed with the clerk of the court within sixty days after rendition of judgment.” 1956 Code, tit. 6, � 1013. It is clear from the above that there are three important requirements, the first of which is to be performed by the appellant, and the other two by the trial judge. The appellant is to give a bond with two or more legally qualified sureties, which bond shall indemnity the appellee against cost and injury; and the judge, on his part is, first, to fix the penalty, or amount of indemnification and, then, to approve the bond, thereby validating it. That is the 376 LIBERIAN LAW REPORTS simple and unequivocal provision of the statute. This statute does not require the judge to approve the sum of indemnity fixed by the appellant; nor does it require the appellant to fix the sum or penalty; but, on the contrary, it places the responsibility for fixing the sum of indemnity upon the judge. It is just as much the judge’s duty to fix the amount of indemnity in the bond as it is his duty to approve the bond. That is what the Legislature provided, and we have no authority to change it. Had there been ambiguity in the language of the statute, there might have been room for interpretation wherein we might have been able to excuse ourselves for granting the motion on the ground stated herein; but where the language of the law is clear and definite, only the literal meaning applies. This is an elementary rule in the construction of statutes. If the Legislature had intended that it should be the duty of the appellant to fix the penalty in appeal bonds, it would have so stated it in the statute; and since the Legislature did not so state it, but made other provision for fixing the amount of penalty in an appeal bond, the courts would be without legal authority to twist the literal pronouncement of the statute, or to try to make it mean something entirely different from what was enacted by the Legislature. Here is authority in support of this view : “A statute is the written expression of the legislative will. It is the positive declaration of what the law shall be by that branch of the government possessing legislative functions, as distinguished from the executive and judicial functions of coordinate branches. It either makes positive what is already recognized as law, modifies that law, or declares to be unlawful that which hitherto had been lawful. When duly enacted it becomes controlling in respect to the matter to which it properly relates, and unless transcribing certain fixed constitutional limitations, its effect is absolute until again changed by like legislative authority.” 36 CYC. 941 Statutes. LIBERIAN LAW REPORTS 377 “The great fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature. This intention, however, must be the intention as expressed in the statute, and where the meaning of the language used is plain, it must be given effect by the courts, or they would be assuming legislative authority.” 36 CYC. I 106- 1 107 Statutes. Our Constitution divides the functions of our Government into three distinct branches, and forbids those serving in one branch to assume or perform the duties of the others, thereby insulating the functions of each against those of the other two. So, whereas it is the duty of the Legislature to enact statutory law, it is the duty of the judiciary to interpret the law only where there is need for such interpretation, and when request therefor is made in cases of uncertainty as to the meaning of ambiguous provisions. And even the question of ambiguity in a statute must be properly raised by the parties before it can be legally passed upon by the courts, and especially by the Supreme Court, whose jurisdiction is constitutionally limited to appellate matters only. In keeping with the statute quoted supra, the fact that the appellate did not, herself, insert a sum sufficient to indemnify the appellee against cost and injury arising out of the appeal could not invalidate the bond, in view of the fact that the judge performed his statutory duty, fixed a penalty and inserted it in the bond before approving same. Whether the appellant had anything to do with the fixing of this sum in her appeal bond is immaterial so long as the purpose of the statute, namely to have the appellee indemnified against injury, was fulfilled. The approval of the sum by the judge, after he had fixed it in the bond, bound the sureties to the terms of their obligation to assure that the principal indemnified the appellee against cost and injury. The moment the bond was approved by the judge the sureties were precluded from contending that they were not bound by the obligations they had voluntarily undertaken as sureties. 378 LIBERIAN LAW REPORTS I cannot bring myself to believe that any judge would approve an appeal bond without sureties having signed it; nor do I believe that any sensible person would agree to affix his signature to any bond, knowing that such an act on his part entailed the surrender of his property in case of default, without being sure to what extent he had thereby involved himself. To believe this is like believing that a sensible person would sign a blank check to withdraw money from his account in a bank, give the check to a stranger, and instruct him to insert any amount and then present it for encashment. But where a surety undertook to sign a blank bond, how could he, later, and with any amount of reasonable sincerity, blame anyone for having obligated him beyond his capability to pay? In fact, how could he thereafter profess ignorance of the amount the bond had obligated him for, under his signature voluntarily affixed to the instrument? Suretyship involves certain risks voluntarily assumed by those who either consent to be, or allow themselves to be talked into becoming, sureties. These are only issues in passing, since the sureties to this appeal bond have not sought to repudiate their signatures ; nor have they claimed ignorance of the amount in which their bond bound their principal to indemnify the appellee. The reason for the rule is clear. If the law had required the appellee to fix the amount of indemnity in an appeal bond, he might have fixed a sum over and above what was sufficient to indemnify him, to the hurt of the appellant; on the other hand, if the law had made it the responsibility of the appellant to fix the sum, he might name an amount insufficient to secure the appellee against injury and costs, to the hurt of his adversary. Therefore, the law has wisely put responsibility for fixing the penalty on the judge, whose duty it is to mete out transparent justice to both sides in the case, and to see that neither side hurts the other. It is for that reason that, although the appellant might insert a sum in the body of the bond, un- LIBERIAN LAW REPORTS 379 less the judge is satisfied that the amount is sufficient to indemnify the appellee, the judge has a right and a duty, under authority given him by the statute quoted above, to ignore the amount named by the appellant, fix the sum himself as required by the statute, and then approve the bond. The law has not given the duty of fixing the sum to both the judge and the appellant, and we have no legal authority to contravene the law by requiring the appellant to do what the statute makes the judge responsible for doing. In view of the statute quoted above, it would be as reasonable to contend that the appellee should approve the amount which would indemnify him against injury growing out of the appellant’s appeal as it would be to contend, as is being done, that the appellant should fix the penalty of the bond which would secure the appellee. This brings us to another point respecting the jurisdictional steps incident to appeals. It is the duty of the appellant to superintend his appeal ; in other words, it is his duty, in his own interest, to see that each and every one of the jurisdictional steps necessary for completing his appeal is taken within the time prescribed by statute, and in accordance with requirements of the law. The filing of an approved bond within 6o days of rendition of judgment, with two or more legally qualified sureties, is one of the steps necessary to the proper completion of an appeal; and the law requires that the bond should carry an amount of indemnity fixed and approved by the judge. Therefore, in superintending his appeal, it is the appellant’s duty to see that his bond, with two sureties, is presented to the judge within 6o days of the judgment, and that it conforms to every legal requirement, before it is approved. Unless he sees that these requirements are met, he would not have properly superintended his appeal, and his bond might be filed without penalty fixed by the court, which would render it defective and therefore dismissible. The appeal bond in question was approved by the corn- 380 LIBERIAN LAW REPORTS missioner of probate for $600, which was in keeping with requirement of the statute. It has been contended that this amount should have been inserted in the body of the bond by the appellant, and not by the judge. It is my opinion that the commissioner of probate fully complied with the law when he first fixed the sum of indemnity, and then approved the bond. It has also been contended that the judge should not have approved the bond until or unless the sureties had knowledge of the amount of indemnity in which they were to be bound unto the appellee, and that unless they had this knowledge in advance of approval, even though the judge approved for a sum sufficient to indemnify the appellee, the sureties were not bound by the terms of the bond. This is a strange argument, unknown to the practice in Liberia, and without any legal backing either in our statutes or in any decision of any court. This argument would negate everything known to the law controlling bail bonds and other kinds of bonds. Moreover, in order for such a contention to be considered by the courts, the sureties must have questioned the fairness of the procedure. In the absence of any such position taken by the sureties, who are the persons most affected by this provision of the statute, it appears to me to be most irregular for the. Court to raise the point, sua sponte, in questioning the fairness of the statute. But what is even more, neither side has complained of suffering any disadvantage as a result of compliance with the law in respect to the statutory requirement that the trial judge fix the penalty in appeal bonds. Why should we do for the sureties what they have not asked us to do, since they have not complained or sought relief? Certainly we cannot be more concerned with their interest than they are themselves. I hold that, no matter how judges may feel on matters affecting the interests of parties, or what may be their views as to issues which should have been raised, but which were not, it is improper for the court to do for the LIBERIAN LAW REPORTS 381 parties what they failed to do for themselves, and what they have not asked the court to do for them. And all the more does it seem improper, when these issues are sought to be raised in the Supreme Court for the first time. The record in this case does not show that the parties had either objected to the judge fixing the penalty of the bond as the statute requires ; nor does it show that the judge had required a sum to be inserted by the appellant in addition to that which he had fixed in keeping with law; nor it is shown that the sureties have contended that the judge should have consulted them before fixing the penalty of the bond. Our appeal law does not require that there should be two penalties in an appeal bond –one inserted by the appellant and the other fixed by the judge. The statute only commands that the penalty of an appeal bond shall be fixed by the court, which was done in this case. In view of the reasons which I have stated hereinabove, and relying upon the law which I have cited and quoted, I find myself unable to agree with the decision of my colleagues to dismiss the appellant’s appeal. Mr. Justice Wardsworth and I, being of the same view, have withheld our signatures from the judgment, and have filed this dissenting opinion instead.