ELLEN A. OKAGBARE, Appellant, v. 0. OVEDJE OKAGBARE, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued January 9, 1963. Decided February 8, 1963. 1. An appeal in a habeas corpus proceeding is not dismissible for a defect in the bond. 2. Where remedial processes stay the enforcement of orders or judgments in matters pending before subordinate courts, such stays also affect the running of appeal time. 3. Where a remedial process results in the stay of a case pending before an inferior court, the right of appeal does not commence to run until after final determination of the remedial proceedings in that case. In habeas corpus proceedings, the Supreme Court denied appellee’s motion to dismiss the appeal. 0. Natty B. Davis, for appellant. erspoon for appellee. William N. With- MR. JUSTICE PIERRE delivered the opinion of the Court. In these habeas corpus proceedings now pending before the Supreme Court, the appellee has moved to dismiss the appeal on the grounds that: ( ) the bill of exceptions was filed by appellant after expiration of the statutory time allowed for such filing; that is to say, seven months after rendition of judgment instead of the ten days prescribed by statute; (2) that the appeal bond is irregular and defective because it was not approved by the trial judge, His Honor, Samuel B. Cole, but by Judge MacDonald Perry who did not preside over the hearing of the case or render judgment therein; and (3) that since the appeal bond was submitted for approval seven months after judgment, instead of the 6o days required by statute, the said bond is of no legal validity. 259 260 LIBERIAN LAW REPORTS The appellant has resisted this motion to dismiss, and contends that: (t) the bill of exceptions was filed within legal time, since the right of appeal accrued to her on January 1 5, 1960, and she filed an approved bill of exceptions on January 22, 196o, just seven days after time for this jurisdictional step began to run ; (2) any circuit judge may, in the absence of the trial judge, approve an appeal bond ; and Judge Cole, the trial judge, being absent from the seat of the court, the bond was presented to the nearest judge then accessible for approval ; (3) since action of the Supreme Court has stopped the running of the statutory appeal time within which the jurisdictional steps should have been taken after rendition of judgment, the fact that the bond had been presented seven months thereafter could not be used as a ground to dismiss appellant’s appeal. In some jurisdictions, habeas corpus is held to be civil rather than criminal in nature ; but in Liberia, the writ is civil as well as criminal, and probate courts have jurisdiction over its issuance. Except for the Supreme Court, no judge of a court of record may refuse to issue the writ upon penalty prescribed. In our Constitution, under which rights and benefits of this great writ are guaranteed to litigants and citizens, several guarantees are specifically stated ; but since the issue of constitutionality has not been raised, I will quote only the relevant portion of Section loth of Article I of our Constitution. It reads as follows : “. . . the privilege and benefit of the writ of habeas corpus, shall be enjoyed in this Republic, in the most free, easy, cheap, expeditious and ample manner; and shall not be suspended by the legislature, except upon the most pressing and urgent occasions, and for a limited time, not exceeding twelve months.” According to this provision of the Constitution, habeas corpus is a writ of right, to be enjoyed by every litigant who may find himself in need of its mandatory orders. LIBERIAN LAW REPORTS 261 These benefits should be enjoyed without recourse to the legal forms required for seeking redress in ordinary litigation; no legal technicality which attends the hearing and determination of other matters should hinder or delay the poorest litigant from benefitting under this simple, but greatest of all writs under our juridical system. There is no room for discretion left to judges of courts of record with respect to issuing the writ upon petition made therefor ; and only after a hearing may the judge determine whether or not there was merit in the petition. For these reasons, the writ would seem to partake more of a criminal character, even though proceedings in habeas corpus appear in the Civil Procedure Law in the 1956 Code. Even the instant case was filed in the Circuit Court of the First Judicial Circuit, Montserrado County, where there is separation of civil and criminal courts; but neither of the parties has contended that the criminal court did not have proper jurisdiction over the subject matter. This brings us to the contention, raised by the appellee’s counsel and heatedly argued here by both sides, that habeas corpus being a civil matter, only the trial judge could have approved the appeal bond to render it valid, in keeping with the provisions of 1956 Code, tit. 6, � 1013. In the proceedings upon a writ of habeas corpus, Mr. Chief Justice Parsons said : it . . . the common law course upon summons in civil cases is, if the party summoned does not appear, his case goes by default. But a writ of habeas corpus is directed to the custodian himself, commanding him to produce the body of the person named in the writ, and if he fails to do so he is punished for contempt….” Proceedings Upon a Writ of Habeas Corpus, I L.L.R. 190, 195 (1885). Thus, the Chief Justice laid it down that the mandatory orders of a writ of habeas corpus, unlike the orders of a writ of summons in civil cases, must either be obeyed, or 262 LIBERIAN LAW REPORTS the disobedient party must suffer punishment. This and other differences make habeas corpus proceedings entirely unlike civil matters. For instance, the inquiries in habeas corpus relate always to detention, and detention is not cognizable in civil actions under our law. But there is another important phase of habeas corpus, which makes it different from anything which could be regarded as civil in nature; and that is that no defect in, form or procedure will quash or dismiss it. For example, in White v. Witherspoon, i L.L.R. Ioo (1945), the appellee, as petitioner, had venued his case in the equity division instead of in the law division of the court below. Ordinarily, and in any civil case, this would have been a fatal blunder, and would have rendered the case dismissible; but Mr. Justice Russell in speaking for the Supreme Court, held that no writ of habeas corpus could be quashed for a defect of form. Therefore, whether or not the bond was approved by the trial judge, or by some other judge who had nothing to do with the trial, so long as the appellee was properly protected under an approved appeal bond in habeas corpus, the appeal cannot be dismissed for defective bond. Defects which appear in bonds in other cases, and thereby invalidate appeals in such cases, do not render appeals in habeas corpus dismissible for the same defects. Referring to Counts 1 and 3 of the motion to dismiss, that is to say, that the bill of exceptions and the appeal bond were presented and approved outside of the statutory time allowed, we have considered appellee’s contention, that the writ of prohibition issued by the. Justice presiding in Chambers, which acted as a stay of further proceedings in habeas corpus, was not determined finally until the January 15, 196o, when the Supreme Court rendered judgment therein. In all cases where remedial processes stop further hearings and enforcement of orders or judgments in matters pending before the subordinate courts, such stays also affect the running of appeal time in such LIBERIAN LAW REPORTS 263 cases. And where such remedial processes are made to effect stays in cases pending before courts of origin, the right of appeal cannot begin to run in such cases until after final determination of such remedial proceedings. It is therefore our considered opinion that the motion to dismiss is without legal merit, and the same is hereby denied. Motion denied.