NATIONAL MILLING COMPANY OF LIBERIA, represented by its Managing Director, WILLIAM K. COLLIER, Petitioner, v. HIS HONOUR FRANCIS N. PUPO, SR., Judge, Debt Court for Montserrado County, and MIATTA FAMILY CENTER, represented by its president, ABRAHAM SANTANA, Respondents.
APPEAL FROM THE RULING OF THE JUSTICE IN CHAMBERS DENYING A PETITION FOR A WRIT OF ERROR.
Heard: November 23, 1987. Decided: February 25, 1988.
1. An appearance by a defendant shall be made within ten days after the service of summons or resummons upon him. A failure to appear or file an answer within that period allowed is tantamount to an abandonment of the defense, for which a default judgment is applicable.
2. If a defendant fails to appear, plead, or proceed to trial, or if the court orders a default for any other failure to proceed, the plaintiff may seek a default judgment against him.
3. Where a defendant fails to appear or file an answer, the trial court commits no error in not notifying or citing the defendant for the hearing.
4. Notice is not required to be served on a party who had not appeared or filed an answer when the claim is for a sum certain or for a sum which can by computation be made certain; if the plaintiff’s claim is not for a sum certain or for a sum which can by computation be made certain and if the defendant has appeared, or if more than one year has elapsed since the default, the defendant is entitled to at least five days’ notice of the time and place of the application for judgment. Where notice to a defendant who has not appeared is required, such notice may be dispensed with upon good cause shown.
5. A copy of every paper served in a proceeding must be served upon every party affected thereby; however, generally, upon default of a party for failure to appear, no such obligation results.
6. Where a party feels constrained to contest the jurisdiction of a court, a motion to dismiss is the proper procedure to pursue.
7. Where a party raises the question of jurisdiction over his person or the cause, and the trial court holds otherwise, the proper remedy is prohibition and not a writ of error.
8. The Supreme Court takes cognizance of matters appearing in the records made in the lower court and certified by the clerk.
9. Except as otherwise provided by statute, service of an answer or reply shall be made within ten days of the service of the pleading to which it responds.
10. A complaint is a pleading to which a responsive pleading is required.
11. At the time of service of his responsive pleading, a party may move for judgment dismissing one or more claims for relief asserted against him in a complaint or counterclaim on any of the ground that the court has not jurisdiction over his person.
In a petition for a writ of error, the plaintiff-in-error, defendant in the trial court, alleged that the co-respondent judge, who presided over the case in the Debt Court for Montserrado County, had erred in hearing the case and entering a default judgment against it in the January Term of the court when the case was venued in the February Terms of the said court. The plaintiff-in-error, who had been served with summons, had failed to appear or file an answer within the time prescribed by the Civil Procedure Law. The plaintiff-in-error contended that no notice for the hearing was served on it; that the trial court had not acquired jurisdiction over its person at the time the court rendered judgment against it; and that the action of the corespondent judge was intended to deprive the plaintiff-in-error of its day in court.
The Justice in Chambers denied the petition and quashed the alternative writ. From this ruling, an appeal was prosecuted to the full Bench.
The Supreme Court en banc rejected the contentions of the plaintiff-in-error, holding that as the plaintiff-in-error had failed to appear or file an answer, it was not entitled to notice for the hearing of the case. The Court noted that under the Civil Procedure Law, the plaintiff-in-error had a period of ten days within which to appear or file an answer to the complaint, and that when it failed to adhere to this time frame, it was considered as having abandoned its defense. Under the circumstances, it said, the trial judge did not err in entering a judgment by default, upon application of the co-defendant-in-error, without giving prior notice to the plaintiff-in-error.
On the contention that the trial court had heard the case in the January Term of the court when the case was filed for the February Term of the said court, the Supreme Court observed that the records showed that the case was heard on the first day of the opening of the February Term of the court, which was legal and consistent with the law.
Additionally, the Court held that the trial court had acquired jurisdiction over the person of the plaintiff-in-error since it had been properly served with summons. The Court held further that as the plaintiff-in-error had raised the question of jurisdiction over its person, error was not the proper remedy. Instead, it said, within the context of a challenge to the jurisdiction of the court, the plaintiff-in-error should have proceeded by prohibition. Accordingly, the Court affirmed the ruling of the Justice in Chambers denying the petition for a writ of error.
A. Cadmus Moore, Jr. of the Steele & Steele Law Firm appeared for plaintiff-in-error/appellant. Philip J. L. Brumskine of the Philip J. L. Brumskine Law Firm appeared for defendantsin-error/appellees.
MR. JUSTICE KPOMAKPOR delivered the opinion of the Court.
Our distinguished colleague, Mr. Justice Boimah K. Morris, Sr., heard this case in Chambers and ruled dismissing the petition for a writ of error and quashing the alternative writ. The plaintiff-in-error, now appellant, being dissatisfied with the adverse ruling rendered by the Justice presiding in Chambers, appealed to the bench en banc.
We have reviewed the petition and the returns of the defendants-in-error, and we have also reviewed the documents in the trial court whence these proceedings have come. We are in accord with the ruling from which this appeal was taken. We are therefore quoting the said ruling and adopting it as the opinion of the bench en banc. The said ruling reads thus:
“RULING
“The petitioner herein has applied for a writ of error against the co-defendant-in-error judge for rendering judgment against her in an action of debt filed against her by Miatta Family Center by and through Abraham Santana, co-defendant-in-error. The six count petition states that the co-defendant-in-error judge heard and determined a debt action in ex parte in the January 1985 Term of court when the said action was venued before the February Term 1985, just to deny the plaintiff-in-error her day in court. She further contended that there was no notice served on her for the hearing of the case. The petitioner argued that the codefendant in error judge did not acquire trial jurisdiction over her person when he had the ex parte trial and rendered a default judgment adjudging the petitioner liable for the debt. The judgment has not been satisfied and the petition is not filed for the mere purpose of baffling or delaying the trial of the case, petitioner concluded.
The respondents maintained that the petitioner was duly summoned but that it neglected to appear or file an answer; that co-defendant-in-error Miatta Family Center’s counsel obtained a certificate from the clerk of the Debt Court and thereafter applied for a default judgment which was granted; that after a hearing, judgment was rendered on the 12th of February, 1985 adjudging petitioner liable. They further contended that the petitioner’s, defendant in the court below, failure to appear or file an answer was tantamount to an abandonment of the case and that the codefendant-in-error judge was under no legal obligation to cite her for the hearing of the case. They attached copies of the certificate from the clerk of court, the writ of summons with the returns of the sheriff and the complaint. They maintained that the co-defendant in error did have jurisdiction over the person of the petitioner through the service of the writ of summons duly served and eturned served on her; and that a party is not barred from filing an action during one term of court for an ensuing term. Finally, they strongly contended that a writ of error will not lie in the case where a trial court’s lack of jurisdiction over the person of a party, since in the case of a lack of jurisdiction over the person or a lack of jurisdiction generally, or where, having jurisdiction, the court proceeds irregularly, the remedy available is prohibition and not error.
The records reveal that an action of debt was instituted against the petitioner on the 24th of January, 1985 and that a writ of summons and the complaint were served on the petitioner on January 25, 1985, as per the returns of the sheriff. On the 5th of February 1985, counsel for codefendant-in-error obtained a certificate from the clerk of court stating that no answer was filed. We quote hereunder the said certificate:
‘CERTIFICATE
‘This is to certify that from a careful perusal and inspection of the records in the above entitled cause of action, it is revealed that there is no answer filed by the defendant, nor written formal appearance up to and including the issuance and signing of this certificate.
Given under my hand and seal of this Honourable court this 5th day of Februa-ry, A. D. 1985.
Sgd. Peter T. Nma CLERK, DEBT COURT, MONT. CO., R. L.’
The Civil Procedure Law, Rev. Code 1: 3.62, under the caption ‘Time when appearance required’, provides that ‘an appearance shall be made within ten days after service of the summons, or re-summons’. In the instant case, the summons was served on the petitioner on January 25, 1985, and she should have appeared by the 4th of February, 1985. Her failure to appear or file an answer on or before the 4th of February, 1985, was tantamount to an abandonment, for which a default judgment is applicable.
The Civil Procedure Law also provides:
‘If a defendant has failed to appear, plead, or proceed to trial, or if the court orders a default for any other failure to proceed, the plaintiff may seek a default judgment against him.’ Ibid., 42.1.
The co-defendant in error judge was legally correct in granting the default judgment prayed for. As for not notifying or citing the petitioner to the hearing, the judge did not err because the petitioner never appeared or filed an answer. This is the relevant statute;
`1. When required. Notice is not required when the claim is for a sum certain or for a sum which can by computation be made certain. If the plaintiffs claim is not for a sum certain or for a sum which can by computation be made certain and if the defendant has appeared, or if more than one year has elapsed since the default, the defendant is entitled to at least five days’ notice of the time and place of the application for judgment. Where notice to a defendant who has not appeared is required by this section, such notice may be dispensed with upon good cause shown.’ Ibid, 42.7(1), at page 216.
The Supreme Court held in the case Elie J. Hay Brothers v. Delis, [1971] LRSC 31; 20 LLR 294 (1971) that:
`1. Generally, a copy of every paper served in a proceeding must be served upon every party affected thereby.
2. However, generally, upon default of a party for failure to appear, no such obligation results.
The petitioner also contended that the case was venued before the February Term, 1985, but was heard in January Term 1985. Recourse to the records, we observe that the judgment complained of was rendered on the 12′ day of February, 1985:, which was on the second Tuesday in February, 1985, the first day of the February Term, 1985. The Judiciary Law, Rev. Code 17: 4.8, relative to the sitting of court, at page 15, stipulates; ‘The Debt Court shall sit in each county on the second Tuesday of each and every month and continue in session until the completion of its business.’ Further, this contention raises the question of jurisdiction of the court over the petitioner and the cause, for which error cannot lie. Instead, prohibition should have been the remedy, if the court had not acquired jurisdiction over both the person and the cause.
Relative to the non payment of the accrued costs, we have found a receipt under the signature of Peter T. Nma, clerk of the Debt Court for $30.00 as accrued costs. This point is therefore not sustained. Counts 4, 5, 6, 7, 8, 11, 12, 13 and 14 of the defendants-in-error’s returns are sustained against the entire petition and the petition therefore crumbles as against the returns.”
As to the allegation by plaintiff in error/appellant, defendant in the lower court, that Miatta Family Center, co-defendant-in-error, appellee in these proceedings, withdrew without reservation, its complaint from the trial court, after the writ of summons had been served on the defendant, the certified records show that although the said notice of withdrawal was prepared and signed by counsel for plaintiff, this document was not filed with the clerk of the trial court. A certificate issued on November 6, 1985, by the clerk of the Debt Court, attests to this fact. Moreover, the issue of the complaint being withdrawn in the trial court was raised for the first time by plaintiff-in-error/appellant in its brief filed with the clerk of this Court on November 20, 1987. While arguing his case before this Bench, Counsellor A. Cadmus Moore, Jr., counsel for appellant, raised the issue that plaintiff having withdrawn its action without reservation to refile, it could not at the same time bring it before this Honourable Court for review. Of course, Counsellor Philip Brumskine, counsel for appellees, duly called his colleague to a point of order, to the effect that the issue of the action being withdrawn was never raised before the Justice in Chambers and, that therefore Counsellor Moore could not, under our practice and procedure, argue it before the bench. In the case Donzoe v. Thorpe, et al.[1978] LRSC 32; , 27 LLR 166 (1978), this Court held, citing Hulsmann v. Johnson, [1909] LRSC 3; 2 LLR 20, 21 (1909) that: “The Supreme Court takes cognizance of matters appearing in the records made in the lower court and certified by the clerk.” Although Counsellor Moore readily conceded the point, this Court wonders why the learned counsel deliberately attempted, in the first place, to circumvent this well recognized rule in this jurisdiction. Since the plaintiff-in-error/appellant conceded that only issues raised in the trial court or before the Justice in Chambers may be argued or reviewed by the bench en banc, said issue of the withdrawal of the complaint becomes moot and does not require further comment.
In concluding this opinion, we wish to emphasize further to the ruling of our distinguished colleague, relative to the contention raised by plaintiff-in-error/appellant that “trial jurisdiction over the person of the plaintiff-in-error was not acquired when the co-defendant-in-error judge had an ex parte trial and rendered a default judgment adjudging said petitioner liable in debt.”
According to the petition filed before the Chambers Justice, the plaintiff-in-error, now appellant, strenuously contended that the judge patently erred in disposing of the case in January which had been venued for hearing in the February Term. In other words, the argument of the appellant is not that they were not served with summons; rather, that their justification for neither appearing nor filing an answer is simply that the case was venued for hearing in the February Term but disposed of in January.
The Civil Procedure Law provides that a defendant served with summons may either appear within the time prescribed by section 3.62 of the statute, or file an answer. Rev. Code I: 9.1(2). The present Civil Procedure Law became operative as early as 1972 and it is not silent on the issue raised by appellant. Had the appellant consulted this statute, it would have found out what it was required to do in securing its interests. Under the caption “Time of service of responsive pleading”, the statute provides: “Except as provided in section 11.3(10) service of an answer or reply shall be made within ten days of service of the pleading to which it responds. Emphasis added. Civil Procedure Law, Rev. Code I: 9.2(3). The complaint was a pleading to which a responsive pleading was required; that is, the contention raised in the petition before our colleague in Chambers by the appellants should have been raised in the answer, it being a responsive pleading. But the appellant chose to remain silent until they were served with a bill of costs and a writ of execution.
Moreover, this Court is convinced that the lower court committed no prejudicial error to warrant the granting of the writ of error. Indeed, if the appellant felt constrained to contest the jurisdiction of the court over its person, a motion to dismiss should have been the appropriate procedure. The statute law provides:
“At the time of service of his responsive pleading, a party may move for judgment dismissing one or more claims for relief asserted against him in a complaint or counterclaim on any of the following grounds:
(b) That the court has not jurisdiction of the person;” Rev. Code I: 1 1 .2(b).
Finally, this Court is of the opinion that the appellant took an appeal from the ruling of the Justice in Chambers for the mere purpose of delaying justice. The Court has in the past, though unsuccessfully, warned against un-meritorious applications made for remedial writs. In the future such acts on the part of lawyers will not go unpunished.
In view of the facts and the authorities cited herein, the ruling of the Justice presiding in Chambers is affirmed. And it is hereby so ordered.
Petition denied; ruling affirmed.