RAAD MOURAD, Appellant, v. J. M. VARELA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT, SINOE COUNTY. Argued November 14, 1967. Decided January 18, 1968. 1. When counsel for both parties stipulate that the case on appeal presents issues of fact which should have been determined by a jury and not ruled upon by the trial court while deciding the issues of law, the judgment of the trial court will be reversed and the case remanded. On appeal from a judgment dismissing the action, the judgment of the trial court was reversed and the case remanded for trial, pursuant to the agreement of counsel for both parties that issues of fact should have been decided by a jury and not the judge. Clarence 0. Tuning for appellant. J. Dossen Richards for appellee. MR. JUSTICE WARDSWORTH delivered the opinion of the Court. At the call of this case, the case having been bulletined and/or duly assigned for hearing, counsel for appellee submitted a motion to dismiss the appeal. In the course of it, it would seem, appellee’s counsel did not insist on the hearing of his said motion to dismiss the appeal, and the Court proceeded to hear the case based on appellant’s bill of exceptions and the respective briefs of the parties. We observe from the record in this case certified to this Court by the clerk of the trial court, that this action was instituted by the plaintiff in the Third Judicial Circuit Court, Sinoe County, on October 23, 1965. The issues of law raised by the pleadings of the parties herein, which progressed as far as the rejoinder, were disposed of 271 272 LIBERIAN LAW REPORTS by the trial judge on January 17, 1966, when the action was dismissed. Appellant excepted and has brought this case to this forum of last resort for review and final determination, on a bill of exceptions containing four counts. The briefs of the parties and appellant’s bill of exceptions especially, raise a few issues, but in the course of argument both counsels agreed on one single issue raised in appellant’s bill of exceptions, embodied in count four thereof, on which we shall focus our attention. “4. And also because in said ruling, your Honor ruled on matters of fact which did not then claim the attention of the court, to which plaintiff excepted.” In this fourth count of the bill of exceptions, appellant complains the judge assumed the role of the jury when, in passing on and disposing of the legal issues involved in said case, he undertook to dismiss the action without submitting issues of fact to a jury as the law directs. In his argument, appellant’s counsel stressed the point that the issues of fact should have gone to the jury, and that it was error on the part of the trial judge to have dismissed the action, in view of the facts involved, without the jury passing on the said facts. The learned counsel for appellee in arguing his side of the case, conceded the contention of appellant’s counsel to the effect that the issues of fact should have been placed before the jury, in keeping with law. Whereupon, both counsel agreed that the case should be remanded, to be tried in keeping with the law. Therefore, counsel for appellee having conceded the correctness of appellant counsel’s contention, to the effect that the trial judge did commit error in dismissing the action without submitting the issues of fact involved in the case to a jury, the judgment of the lower court is hereby reversed and the case remanded, to be tried and determined according to law. Costs to abide final determination. And it is hereby so ordered. Reversed and remanded.