SAMUEL D. MITCHELL, Appellant, v. P. EDWARD NELSON, II, Sheriff Montserrado County, EDWIN GABBIDON et al., Appellees.
APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Heard: May 3. 1983. Decided: July 7, 1983.
1. A bill of information can be brought before a succeeding judge, provided it is brought by a party to the main suit pending before the court and that it is not intended to reverse the judgment of the trial judge which had judicially settled the issues of contention and put the case to rest.
2. The court at every stage of a proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
3. A bill of information is not a possessory action, and cannot be used to put a party in possession of real property.
4. A trial judge lacks jurisdiction to review the decisions of a judge of concurrent jurisdiction.
Seven years after the lower court had handed down its ruling in an ejectment suit in which the informant was ejected from the premises which he occupied, the informant filed a bill of information alleging that he was not a party to the suit out of which the ej ectment judgment was enforced and therefore should not have been affected by it. The lower court refused jurisdiction, holding that it could not review the judgment of a concurrent judge. The court accordingly granted the motion to dismiss filed against the review of the case. The Supreme Court affirmed the decision of the lower court, and upheld the principle relied upon by the trial court in determining that it was without authority to review the judgment of a predecessor judge who held concurrent jurisdiction.
Johnnie N. Lewis appeared for the appellant. John T Teewia appeared for the appellees.
MR. JUSTICE KOROMA delivered the opinion of the Court.
In 1966, an action of ejectment was instituted by James H. Deshield, Jr., and Henrietta Williams Bangori, said to be the legal surviving heirs of Edmund Chavers against one Old Man Tom and others for lot number 36, located at Lakpazi Town. The informant/appellant was no party to said suit. Seven years after the institution of this action, His Honor John A. Dennis presiding over the September 1973 Term of the Civil Law Court heard the case and entered a final judgment confirming a jury’s verdict in favor of the defendants. A writ of possession was issued in favor of the defendants who were, by averments in the complaint, already in possession of and occupying the subject matter of the ejectment suit. During the service of the writ of possession, Samuel D. Mitchell, who was no party to the ejectment suit nor in privy to any of the parties and who is alleged to have been physically occupying a portion of land that fell within the domain of the writ of possession, was evicted by the sheriff of Montserrado County in 1973. During seven years following the service of this writ of possession, ousting and evicting informant/appellant from a parcel of land he is said to have been physically occupying at the time, he lived in complacency, equanimity, calm and serenity until 1980. On October 13, of that year, informant/appellant filed an eight-count bill of information complaining of the sheriff and Edwin J. Gabbidon of illegally, arbitrarily and unlawfully entering his premises “under the authority of the court’s final judgment and writ of possession” and ousting him from his premises and praying the court to order the issuance of a writ of summons on the respondents to appear and “justify the service of the writ of possession in the case James H Deshield, Jr., versus Oldman Tom, et. al.”
To this information, the respondents filed their returns and simultaneously moved the court to dismiss the information on the following grounds: (1) Information being an ancillary suit, can only be maintained where there is a main suit filed with it or pending before the forum in which the information is filed. The ejectment suit out of which the information had grown, respondents said, had been adjudicated seven years ago in 1973 and was no longer pending before the court in which the information was filed; (2) that the informant, Samuel D. Mitchell, was not a party to the ejectment suit which was decided in favour of Co-respondent Edwin J. Gabbidon and others in 1973. Hence, information will not lie; and (3) That the respondent judge before whom the information was filed, held concurrent jurisdiction with the trial judge of the ejectment suit out of which the bill of information had germinated and which action having been finally determined without any party availing himself of an appellate review, could not be resurrected after the demise of seven years.
In a four-count resistance to this motion, the informant admitted that information is a special proceeding which grows out of a main suit, but maintained that there is no law controlling which makes it mandatory that a main suit be pending and that it is sufficient to show, as in the case at point, that a suit was pending and that the ministerial officer of the court in enforcing an order of the court proceeded in a manner contrary to law; that since respondents alleged that information would not lie, they were under duty to suggest a better writ; informant argued further in his resistance to the motion that it was not necessary that informant should have been a party to the main and original suit; that it is sufficient to show that the sheriff in the execution of an order of court proceeded in a manner which affected the rights of the party, not a party to the original suit. The informant finally argued and submitted that the information was not intended to undo the acts of His Honour John A. Dennis, who presided over the trial of the ejectment suit, rather the information was intended to bring to the attention of the court the illegal and oppressive manner in which the sheriff proceeded to execute the orders of Judge John A. Dennis. Consequently, the issue of concurrent jurisdiction and the prohibition attended thereto did not arise in this case.
The motion and resistance having been eloquently argued, His Honour Frank W. Smith overruled the resistance and granted the motion dismissing the information with costs against the informant. It is from this ruling that the informant has appealed to this Court en banc for review and final determination.
In his brief filed before this Court, the informant/appellant argued that the trial judge committed error and misinterpreted the office of a bill of information when he questioned the undue delay of seven years that had attended the filing of the information. He also argued that the trial judge misinterpreted the office of a bill of information when he questioned the lack of explanation in the bill of information as to why the informant did not file the bill of information for the attention of the assigned judge who ordered the writ of possession issued, since it is claimed to have been unlawfully and illegally executed by the sheriff. The informant construed this question to mean that Judge Smith was saying that the bill of information must have been brought to the attention of the trial judge only and by him alone entertained.
Recourse to the ruling of the trial judge revealed that it is the informant who has misinterpreted the ruling of Judge Smith instead of Judge Smith misinterpreting the office of the bill of information. The informant having averred in his bill of information that he and his family were legally and physically in possession of and occupying a parcel of land when the sheriff, in the execution of the court’s judgment and while serving the writ of possession, illegally and unlawfully and by force, ousted and evicted them from said premises, judicial prudence and legal reasoning would demand ascertaining why a person so adversely and grossly affected did not react immediately in seeking a redress; and if such a person has condescended to wait until after seven years before seeking a redress by a bill of information, and in which there is no explanation as to any disability, it becomes the province of the dispenser of justice to know why the lack of such explanation. This, in our opinion, can in no way be construed that a bill of information must be brought to the attention of the trial judge only and by him alone entertained. A bill of information may be brought and entertained by any judge other than the trial judge, provided, however, that it is brought by a party to the main suit pending before the court and that it is not intended to reverse the judgment of the trial judge which had judicially settled the issues of contention and put the case to rest. A judgment of a court of concurrent jurisdiction directly on the
Points or matters in issue and without fraud or collusion “is conclusive of the rights of the parties or their privies in all other actions or seems to the same or any other judicial tribunal of concurrent jurisdiction.” 15 R.C.L., § 429, ch. 18, Res Judicata, pp. 950 – 951. If this doctrine holds for parties and their privies, can information by a nonparty to a suit judicially decided, resurrect an action at rest? Our answer is emphatically no. Count one of the bill of exceptions along with count one of the brief are therefore overruled.
In count two of the bill of exceptions and count two of the brief, the informant/appellant maintained that the trial judge erred while passing upon the issues of law when he remarked: “It is also not shown why or whether the informant, during the pendency of the ejectment suit, filed a motion to intervene since his interest in the land was apparent.” Informant strongly contended that the trial judge can not properly pass upon issues of law not raised in the pleadings, and therefore he committed error. While we hold that this was error on the part of the trial judge to have injected intervention into his ruling when this issue was not raised in the motion, we have failed to see what injury this statement did to the substantial rights and interest of the informant. Further, the informant seemed to vindicate the need for the judge to have made this statement when in the very count two of the bill of exceptions and brief he stated unequivocally that he had had no notice and knowledge of the pendency of the ejectment suit between Deshield and Oldman Tom et al., hence, voluntarily answering the question why he did not intervene. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. Civil Procedure Law, Rev. Code 1:1.5. Count two of the bill of exceptions and brief respectively are overruled.
In count three of the bill of exceptions and count three of the brief, the informant created a state of confusion in his argument, in that, it appeared that he was attacking Judge John A. Dennis for ordering the issuance of a writ of possession in favour of the defendants when it is said that they were physically in possession of and occupying the land. On the other hand, when Judge Smith, in passing upon the motion to dismiss the information, questioned the judicial prudence in issuing the writ of possession in favour of the defendants under the circumstances stated above, the informant labeled this exercise as “making findings of fact” and further that the court was passing upon the issues of law and not of fact; hence, it committed error. The fact as to the issuance of the writ of possession in favour of the defendants was raised by the informant in count four of his bill of exceptions. The mention made of this fact by the trial judge constituted no error in the opinion of this Court. Count three of the bill of exceptions and count three of the informants brief are therefore not sustained.
In counts four and five of the bill of exceptions and brief, the informant/appellant argued that the trial judge misapplied and misinterpreted sections 2.4 and 2.19 as they relate to equitable relief and the statute of limitations respectively. In this connection, the informant/appellant argued that while the court or trial judge had applied the equitable doctrine of section 2.4 of the Civil Procedure Law, Rev. Code 1, to deny the information, he, the informant, had not come before the court in equity, but rather, that he was before the court in law. That being in law, the statute of limitations had not run against him since the information had grown out of an ejectment case for which the law allows twenty years for the tolling of the statute. This argument brings us to the all important issue as to the capacity of the informant.
We do hold that a bill of information is not necessarily a proceeding in equity by which equitable relief is sought. Generally, to determine whether an informant is seeking relief in equity or law, the court must predicate such determination upon the nature of the case from which the information has grown, the circumstances surrounding the case, the substance of the information and the relief sought by the informant’s prayer. In the instant case, the informant in his prayer, is appealing to the untarnished hands of equity to restore him to the status quo of what he claims to be his property while he seemed to be legally contending in his information that no valid judgment had been rendered against him in the ejectment suit because of the lack of jurisdiction over his person and, hence, said judgment should not be binding upon him. We hold that our colleague committed no error when he construed the prayer of the informant as relief sought is in equity and therefore the application of Civil Procedure Law, Rev. Code 1:2.4. in denying the information.
The informant argued before this Bench with particularity that he was not a party to the ejectment suit in which James H. Deshield, Jr., and others were plaintiffs and Oldman Tom and others were defendants. Consequently, no valid judgment could be rendered against him by the trial court that had no jurisdiction over his person. Further, that any such judgment when rendered, could have no binding effect on him where he had neither been cited to appear nor afforded an opportunity to be heard. In support of this argument, he has cited the Court to the case Nimley, et al. v. Yancy at al[1982] LRSC 72; , 30 LLR 403 (1982).
Recourse to that opinion revealed that Mr. Justice Morris speaking for this Court, relied upon the cases Gbae, et al., v. Geeby and Schilling & Company v. Tirait & Dennis, and dismissed the information on the ground of jurisdiction. The principles of law pronounced in the two cases hereinabove cited are (1) “a judgment is not binding upon a party who has neither been duly cited to appear before the court nor afforded an opportunity to be heard.” Gbae v. Geeby, [1960] LRSC 50; 14 LLR 147 (1960); and (2) “no valid judgment can be rendered against a person over whom the court had no jurisdiction. Schilling & Company v. Tirait & Dennis, [1965] LRSC 3; 16 LLR 164 (1965). Unlike the case in point, the two cases were brought under the jurisdiction of the Supreme Court by a writ of error to review the judgments of the lower courts. Hence, the said two cases are not analogous to the information now before this Bench. Consequently, this law, relied upon by the informant and which has been cited in support of this argument is not applicable to this information proceeding.
While the informant strenuously argued that not being a party he should not be bound by the judgment in the ejectment suit, yet, he is not inclined to accept the principle of law that information is an ancillary suit and is only maintained where there is a main suit filed or pending before the forum where the information is filed, and that the informant must be a party to the main suit. His argument attempts to isolate the conduct of the sheriff in the service of the writ of possession from the main suit of ejectment. In other words, when the informant was attacked in both the returns and the motion to dismiss the information on the grounds that he the informant was not legally clothed to file the information, he not having been a party to the suit of ejectment out of which the information had grown nor could information be maintained when the main suit had been adjudicated more than seven years prior to the filing of the information, he conceded the argument in so far as the judgment should not have affected nor be binding on him as a nonparty to the suit of ejectment. He, however, argues that the information was filed for the sole purpose of having the sheriff to appeal and justify the service of the writ of possession on the informant wherein he was forcibly evicted from his premises, and concluded by praying that the trial court will grant him a relief by having him placed in “status quo ante”. If this request or prayer had been granted by the trial court, the final judgment in the ejectment suit would have been reversed and informant placed in possession of a piece of property for which he had shown no title vested in himself.
The informant argued further in count five of the bill of exceptions and brief that the trial judge misapplied and misinterpreted section 2.19 of the Civil Procedure Law as it related to the statute of limitations in actions brought against public officers for liability incurred by them in performing an act in their official capacity or by omission of an official duty. The informant contended that the information was not a civil suit against the sheriff for liability incurred by him, as no damages had been prayed for and none would be awarded were the information entertained and the relief granted.
We hold that the trial judge did not misapply nor misinterpret the statute hereinabove cited. In his complaint, the informant averred that the sheriff for Montserrado County connived with Co-respondent Edwin J. Gabbidon and with force and arms, physically removed and ousted him and his family from his premises which he was then legally and physically in possession of. The gravity of this averment suggests that there was an official misconduct on the part of the sheriff which was actionable and, hence, the bill of information. We are of the considered opinion that the informant decided to file this bill of information because he could find relief in no other action. In that, neither damages nor error would lie because the statute had tolled against the informant and ejectment suit could not be maintained because the informant had shown no title in himself. Hence, the only avenue left open to the informant was that of a bill of information since there is no statutory limitation expressly laid down against its filings. Although information is not a possessory action, yet the informant prayed the trial court to have him placed in status quo ante or to repossess the property and dispossess those who had gained possession to the property through the judgment of a court of competent jurisdiction. This method used by the informant was indeed a clandestine employment of the arm of the law to strangulate and defeat transparent justice. Hence, the application of the relevant statute by the trial court to foil and defeat this attempt. Counts four and five of the bill of exceptions and brief are therefore overruled.
One of the grounds upon which the trial judge sustained the motion and dismissed the information was that of the lack of jurisdiction to reopen the action of ejectment, especially where the informant was requiring a repossession of the property. Judge Smith held concurrent jurisdiction with His Honour John A. Dennis who had adjudicated and judicially decided the ownership of the property between the parties to the suit wherein no appeal was taken nor a remedial process sought. Wherein then was Judge Smith’s legal and judicial authority to have the case reopened under the cloak of information to put a nonparty to the ejectment suit in possession of the property. To do this, Judge Smith would have had to dispossess the party who had been put in possession by the sheriff, thereby reversing the judgment of Judge Dennis and disturbing the doctrine of res judicata placed on the case by said judgment. Therefore, we concur with the trial judge in sustaining the motion and dismissing the information on the ground of concurrent jurisdiction.
In view of the facts and circumstances herein above elaborated, it is our holding that the ruling of the trial judge in the lower
Court dismissing the information should be and same is hereby confirmed and affirmed with cost against the informant. And it is hereby so ordered.
Judgment affirmed.