ANGIE R. PERRY, SARAH F. PERRY, and ANTHONY A. PERRY, Appellants, v. J. EMERY KNIGHT, WILLIAM FRED GIBSON, ISAAC E. PERRY, and A. DASHWOOD WILSON, JR., Appellees.
MOTION TO DISMISS AN APPEAL.
Decided December 4, 1936.
This Court will not dismiss an appeal if the negligence or tardiness complained of was a duty devolving upon the clerk of court, and not upon the party against whom motion was filed.
Motion to dismiss appeal on jurisdictional grounds denied.
Anthony Barclay for appellants. W m. V. S. Tubman for appellees.
MR. JUSTICE DIXON delivered the opinion of the Court.
On the 2nd of December, 1936, the above entitled cause was called for hearing, when Counsellor William V. S. Tubman appeared for the appellees and thereupon gave notice to the Court that he had filed : a) a motion to dismiss the appeal, and b) another Motion for judgment by default as the appellants had failed to be present at the call of the case.
The motion reads thus :
“Because the said appeal now appearing upon the docket of the Supreme Court was not filed within the time prescribed by the statute to wit, within ninety days, as will more fully appear by recourse to the record, which shows that final judgment was rendered on the second of September, 1935, and said appeal was not filed in this court until the 6th day of January, 1936, fully one hundred and twenty-six days after the time allowed and prescribed by Statute had expired. Appellees therefore plead the jurisdiction of the Honourable Supreme Court over said appeal and pray that Your Honours will refuse jurisdiction, dismiss the appeal and rule appellants to costs.”
Counsellor Tubman in his argument strenuously contended that the appeal should be dismissed and cited the Act of Legislature 1935-36, chapter 7, which sets forth the following:
“Section 1. The appellate court might dismiss an appeal upon motion properly taken for any of the following reasons only : Non-appearance of appellant. Failure to file an approved appeal bond, or where said bond is materially defective. Failure to file approved Bill of Exception. Failure to file appeal in the Appellate Court within 60 days after final judgment.
“Section 2. That said section, [that is, Section 430 of the Revised Statutes] shall be so amended to read: that no act or omission of a Judge or any officer of Court shall effect [sic] the validity of an appeal, but such act, mistake or negligence shall be remedied by some appropriate order of the Appellate Court so as to promote justice.”
Counsellor Tubman, although a member of the Legislature, and one of those who took an active part in the passing of this amended section of the Revised Statutes, seemed to have lost sight of the reason of said amendment. It is the opinion of this Court that the said amendment was made for the specific protection of the interests of litigants, and has reference only to the duties required by the parties. The act governing appeals originated in 1894 and remains unrepealed up to this date. The paragraph “Failure to file appeal in Appellate Court within 60 days” is in harmony with the original act of 1893-94, page 9.
In the said enactment the procedure necessary to be followed in appealing a case from any of the trial courts to this Supreme Court has two distinct divisions, namely (1) the duties which devolve upon the party appealing; and (2) those which devolve upon the clerk of the trial court, as is very fully and lucidly set out in an opinion of this Court handed down at our last (April) term by Mr. Justice Russell, speaking for us all, in the four cases settled in one opinion, viz.: Caulker v. Republic; Russ v. Republic; Yancy v. Republic; and Yancy and Delaney v. Republic, [1936] LRSC 12; 5 L.L.R. 145 (1936).
This Court, in confirming said opinion, now desires to emphasize that the whole object and intent of chapter 7 of the Laws of 1935-36, especially section 2 thereof, was to obviate the dismissal of a case because of any neglect committed by an officer of court upon whom, rather than upon a party, a responsibility might rest.
We may here reiterate the following from the opinion above referred to:
“This Court will not dismiss appeals for the neglect of the clerk of court below to transmit the records within the time prescribed by statute since in that connection the party litigant has no duty to perform. When the appellant has performed the last act required by the statute on appeals; to wit, to see to it that his bill of exceptions is tendered within ten days after final judgment, the appeal bond approved and the costs of court paid within sixty days after the final judgment, he shall not suffer for the neglect or dereliction of the clerk of court to transmit the records to the appellate court, and the appeal shall not be dismissed; especially as the law above cited punishes the neglect of a party to perform any duty incumbent upon him by a dismissal of the case, but where the duty should have devolved upon the clerk of the court the statute on the subject is as follows:
” ‘Should any clerk of the several courts violate any or neglect any of his duties herein prescribed, he shall on complaint to the President of the Republic, be immediately dismissed from office, and his bond foreclosed.’ L. 1893-94, 10, § 3.”
We therefore confirm the said opinion herein quoted and deny the motion and now order the case to be tried on its merits.
Motion denied.