FRANCIS J. SAWYER, MARY COOPER, and His Honor, D. W. B. MORRIS, Assigned Judge of the Circuit Court of the Sixth Judicial Circuit Montserrado County, Appellants, v. JOSIAH FREEMAN, Appellee.

APPEAL FROM RULING IN CHAMBERS ON APPLICATION FOR WRIT OF ERROR. Argued November 11, 1965. Decided January 21, 1966. An application for a writ of error is not deniable merely on the ground that the petition refers to the parties as petitioner and respondent ; the jurisdiction of the Supreme Court is dependent on the subject matter, not upon the nomenclature used in the petition. 1956 Core 6 :1231 ; (1957-58 Cum. Supp.) 6 :1254. 2. The statutorily required stipulation that an application for a writ of error has not been made for the purpose of harassment or delay should be stated by affidavit rather than in the body of the petition. 1956 CODE 6:1231(a). 3. Whether a plaintiff in error is required to file a bond for indemnification of the defendant in error in the event of the affirmance of the judgment complained of is discretionary with the Justice who grants the writ. 1956 CODE 6:1231(d). 4. An ejectment action is not triable in a circuit court unless title to real property is at issue or the alleged damages exceed $300. 1956 CODE 6:1124. 5. The sheriff’s returns of service create a rebuttable presumption of the truth of statements of fact set forth therein. 6. An allegation in a petition for a writ of error is not sufficient to rebut the presumption of the truth of statements of fact in the sheriff’s returns. 7. A plaintiff who elects to bring an ejectment action in circuit court where the damages claimed cannot exceed $300, thereby in effect raises an issue of title and is estopped from subsequently denying that a writ of resummons is required when the defendant has failed to appear. 1956 CODE 6 :1125. 1. Appellants instituted an ejectment action in the circuit court against appellee, who failed to file an appearance. On attempted execution of a default judgment by writ of possession, appellee obtained from the Justice presiding in Chambers first an alternative and subsequently a peremptory writ of error. On appeal to the full Court, the ruling in Chambers granting the peremptory writ of error was affirmed. 274 LIBERIAN LAW REPORTS 275 J. Everett Bull and J. Garrison Bull for appellants. J. Dossen Richards for appellee. MR. Court. JUSTICE SIMPSON delivered the opinion of the During the March 1965 term of the Circuit Court of the Sixth Judicial Circuit, Montserrado County, an action of ejectment was filed by Mary Cooper and Francis Sawyer, the present appellants, against Josiah Freeman, the present appellee, for the recovery of a certain house situated on Lynch Street in the City of Monrovia. The writ of summons required Freeman to file his formal appearance on or before the 26th day of February, 1965. The returns of the sheriff to the writ of summons stated that although Freeman was duly served with the writ of summons on the 24th day of February, he returned the precepts and accompanying documents to the sheriff stating that he would not attend upon court. The date of returns of the sheriff was the same as the date of service of the writ of summons. The record before us reveals that Freeman failed to file a formal appearance as required by Section 290 of our Civil Procedure Law. It is further shown that subsequently and without application to court for the issuance of other precepts, there was an assignment of the case and a determination thereof by the presiding judge awarding unto the present appellants a default judgment due to the nonappearance of the present appellee in error as mentioned supra. Execution was thereafter prayed for by the plaintiffs in the court below, whereupon on the 31st day of March, 1965, a writ of possession was issued by the Circuit Court of the Sixth Judicial Circuit, Montserrado County, placing the aforesaid plaintiffs in possession of the property in accordance with the judgment rendered by that court on the 29th day of the same month. The writ of posses- 276 LIBERIAN LAW REPORTS sion was duly served upon the present appellee who, thereafter, applied to the Justice presiding in Chambers during the March 1965 term of this Court, seeking the issuance of an alternative writ of error. This writ as applied for was granted by the Chambers Justice and, subsequently, upon hearing of the petition and returns made thereto, the writ was made absolute by the granting of a peremptory writ of error. At that stage an appeal was prayed for to the full Court; hence these proceedings. The petition for the writ of error alleged that an agreement of lease existed between Freeman and the plaintiffs in the ejectment action. Freeman further alleged that notwithstanding the existence of the agreement of lease, the defendants in error proceeded to institute an action of ejectment against him and that, although he was never summoned or furnished a copy of the complaint as was falsely alleged in the sheriff’s returns, the case was tried and disposed of against him. The plaintiff in error further contended in his petition that the judge erred in the rendition of a judgment by default since the law provides that no judgment by default can be legally rendered against a defendant in an action of ejectment until such time as a writ of resummons has been issued and placarded upon the subject property ; and in the present case no re-summons was ever issued. The plaintiff in error, whilst petitioning the Chambers Justice, further alleged that a regular appeal was in the premises impossible, especially since he was neither summoned nor notified of the time of the trial to have enabled him to except to and appeal from the alleged illegal judgment. In accordance with the requirement of this Court, the defendants in error filed returns in which they alleged, in substance, that : 1. This Court cannot legally assume jurisdiction over the persons herein named petitioner and respondents, for the Supreme Court does not have original jurisdiction in actions of this nature as is implicitly LIBERIAN LAW REPORTS 277 alleged by plaintiff in error in naming the parties petitioner and respondents. 2. The verification to the effect that the application for the issuance of a writ of ejectment has not been made for the mere purpose of harassment and delay should have been included in the application itself and not the affidavit. 3. In an action of ejectment, the writ of re-summons is not necessary where plaintiff has failed to appear after being summoned. 4. A bond must be filed with the application for the issuance of an alternative writ of error or else the plaintiff in error cannot exercise his right to the granting of such a writ. 5. Where a landlord and tenant relationship exists and an action of ejectment is instituted in consequence of a default in the payment of rental, this does not constitute a suit to divest one of title to real property within the meaning of Section 1124 of the Civil Procedure Law. Most of these issues presented seem to be trivial; however, since they have been raised and need to be determined so as to do justice to all parties concerned, let us proceed to examine them. As regards the question of lack of jurisdiction due to the improper nomenclature ascribed to the parties litigant in the application for the issuance of the writ of error, suffice it to say that Section 1231 of the Civil Procedure Law refers to “A person (herinafter sometimes called the `plaintiff in error’) . .” Moreover, the term “defendant in error” is used only once in the controlling statute, and there it is used to describe the person against whom the peremptory writ of error is sought. In another section of our Civil Procedure Law, the following reference is made to respondents : “Except as otherwise provided by law, when a satisfactory application is made to the assigned Justice for a writ which the Supreme Court has jurisdiction to 278 LIBERIAN LAW REPORTS issue, the said Justice shall issue, or order issued from the Clerk’s office, a citation to the parties named as defendants or respondents.” 1956 CODE (1957-58 CUM. SUPP.) 6:1254. [Emphasis supplied]. Therefore is is clearly seen that the subject matter itself and not the nomenclature ascribed to the parties, confers jurisdiction on the court. The contention of the defendants in error would be further untenable in virtue of the fact that a recourse to Section 1231 of the Civil Procedure Law, cited supra, shows the legislative use of the word “sometimes” which in our interpretation makes the use of the phrase “plaintiff in error” permissive and not mandatory or a precondition to the jurisdiction of the court. Turning now to the point raised regarding inclusion in the application for issuance of the writ of a verified stipulation to the effect that the application is not being sought for the mere purpose of harassment and delay, we have the following to say. Section 1231 (a) of the Civil Procedure Law refers to : “An assignment of error, similar in form and content to a bill of exceptions which shall be verified by affidavit stating that the application has not been made for the mere purpose of harassment or delay.” 1956 CODE 6 :1231 ( a) . From the above it is readily seen that to include said stipulation in the application itself would contravene the plain wording of the statute which requires the negative averment in respect of harassment or delay to be stated in the affidavit. The next issue concerns the filing of a bond as a condition precedent to an individual’s exercise of the right to have the writ of error issued on his behalf. The second paragraph of Section 1231 (d) of the Civil Procedure Law provides that : “Before a writ issues, the plaintiff in error shall be required to pay all accrued costs, and he may be required to file a bond in the manner prescribed in section 468 above, such bond to be conditioned on paying LIBERIAN LAW REPORTS 279 the damages sustained by the opposing party, if the judgment, decree or decision complained of is affirmed.” 1956 CODE 6 :1231 (d). [Emphasis added]. This particular requirement was initially prescribed by rule of Court at the promulgation of the Revised Rules of the Supreme Court in 1915 (2 L.L.R. 661 et seq.). It would seem as if the interpretation of this particular statute advanced by defendant in error is predicated upon the words “before” and “may” as found in the statute. In our view, the controlling word is “may” ; and here we must determine whether or not the word “may” is legally synonymous with the words “shall” and “must.” Courts at times construe “may” as “shall” or “must” to the end that justice may not be the slave of grammar. However, where to construe these words as synonymous would defeat the very purpose of the statute, we must then apply to them their natural definitions in accordance with English parlance and usage. In such a case “may” becomes permissive and not mandatory. Therefore it is discretionary with the Justice presiding in Chambers to require the filing of a bond before the writ issues. In the premises the position of the defendants in error cannot be legally sustained, for this would contravene the reason first used by courts for equating “may” with “must” or “shall.” The remaining two issues which we have reserved to treat upon lastly are in a large measure related, and therefore we have decided to deal with them jointly. These issues concern ( ) the necessity for issuance of a writ of resummons in an action of ejectment and (z) whether the instant action is one of the class of the actions of ejectment involving title to the extent that it falls under Section 1125 of the Civil Procedure Law, the pertinent portion of which provides as follows : “In addition to any of the other procedures authorized by statutes or under this Title, the following procedure may be used when title is in issue in an action of ejectment. “If the defendant fails to appear after being sum- 280 LIBERIAN LAW REPORTS moned, the plaintiff may have a writ of re-summons. The plaintiff shall thereupon post a copy of his complaint together with a copy of the writ of re-summons upon the real property claimed by him at least ten days before the date the defendant is required to appear under the writ of re-summons. If the defendant fails to appear within ten days of the appointed date, the plaintiff may apply for entry of default and for the entry thereon of an imperfect judgment by default. As soon as possible thereafter the plaintiff shall be called upon to establish his title to the premises or land which is the subject of his claims; . ..” 1956 CODE 6 :1125. Section 1126 must be read in conjunction with Section 1124. which provides that: “When the title to real property is at issue or when the damages claimed exceed three hundred dollars, the action shall be tried by the Circuit Court of the county in which the real property is located.” 1956 CODE 6:1124. It follows that unless title is involved or the amount in question exceeds $300, the action is improperly venued if brought in a circuit court for trial. The mere bringing of the action in the circuit court amounts to an averment of the existence of an issue that involves title, or that the amount being sued for as damages in the ejectment action exceeds $300. The plaintiff in error has stated that he was never summoned in the court below. This Court has oft and anon held that the returns of the sheriff constitute presumptive evidence as to the fact of service; however, this evidence may be rebutted. In the present case, the allegation relating to false returns was raised for the first time in the Supreme Court. This Court is not an investigatory tribunal but instead one which operates solely upon the records as made in the lower courts except where the original jurisdiction is ex- LIBERIAN LAW REPORTS 281 ercised by us in accordance with the basic law of the land. In the premises, the mere allegation in the petition to the effect that the returns of the sheriff to a writ of summons are false does not possess sufficient legal cognency to be deemed a satisfactory rebuttal of the fact of service. In virtue of the above and admitting to the legality of the service of the writ of summons in accordance with the returns of the sheriff as filed, was there in existence a sufficient issue respecting real property to make it a mandatory requirement that a writ of resummons issue in virtue of the nonappearance of the defendant in the court below as is provided in Section 1125 of the Civil Procedure Law? Let us say, initially, that summary proceedings as defined in Section 1123 of the Civil Procedure Law constitute a prescribed procedure for instances wherein the right of possession and damages are in issue. This particular section does not deal with title. The Chambers Justice having addressed himself. to these two issues relating to title and the writ of summons, we find it expedient to quote from the Chambers Justice’s ruling: “Having now concluded these other issues, let us now turn to whether, as a matter of law, it is legally incumbent upon the party plaintiff in an action of ejectment to order the issuance of a writ of re-summons where the property sought to be recovered is in the possession of an adversary in virtue of a less-than-freehold estate created by an indenture of lease. “In 1928, this Court, in Beavans v. Jurs, [1928] LRSC 8; 3 L.L.R. 28 held that ‘a tenant having possessory title has a right to bring an action of ejectment.’ This case was decided prior to enactment of the 1945-1946 acts of Legislature which provided that whenever title is in issue the cause is not cognizable before a justice of the peace or magistrate. This provision is now found in Section 1123 of our Civil Procedure Law ; however 282 LIBERIAN LAW REPORTS in progressing to Section 1125, it is found that the writ of re-summons may be used if the defendant fails to appear after being summoned in an action of ejectment when title is in issue. “It is a logical conclusion that in every action of ejectment title is in issue, for in ejectment the plaintiff must always recover upon the strength of his own title and not upon the weakness of his adversary’s. The term title is construed as follows in an authoritative treatise : ‘The word “title” includes a right, but is the more general word. Every right is a title, though every title is not a right for which an action lies.’ BLACK’S LAW DICTIONARY (3rd ed. 1944) “An individual may have fee simple absolute title in and to a certain tract of land ; however he may execute an indenture alienating his immediate right to possession by creating an estate for years in another. This individual is legally possessed of title, yet he does not have an immediate right to possession for which an action at law may lie. A squatter may have better title to a piece of property than one who endeavors to dispossess him based upon a legally invalid deed ; for it is a principle of law as old as the hills that one must recover upon the strength of his own title and not the weakness of his adversary’s. “Therefore the word ‘title,’ as used in Section 1125 of the Civil Procedure Law, covers less than freehold estates, including estates for years as in the case presently before us. The second paragraph of the said Section 1125 is applicable in respect of the case at bar, thus making it a mandatory requirement that wherein the defendant in an action of ejectment fails to appear after being duly summoned, it is legally incumbent upon the plaintiff to apply for the issuance of a writ of re-summons to be placarded upon the subject property, thereby giving unto defendant and the world constructive notice of service of process. LIBERIAN LAW REPORTS 283 “The facts in the case at bar have revealed, and it is uncontroverted, that there was only the service of a writ of summons upon the defendant which was insufficient to give the court jurisdiction over the particular subject matter which constitutes one of man’s prized possessions. Here the judge erred.” Moreover, the complaint as filed alleged that the defendant therein was 2 years in arrears in the payment of rental which amounted to $2oo at a rate of $100 per annum. The venue of this ease before the circuit court instead of a magistrate or a justice of the peace is in itself an implied admission of the existence of an issue relating to title to real property. Having elected to venue the action before a circuit court obviously believing same to be an action properly cognizable before that court in virtue of the provisions of Section 1124 of our Civil Procedure Law, the defendants in error, plaintiffs in the court below, cannot avail themselves of a defense to the effect that the procedure prescribed by law when title is in issue should not here be applied to the extent of making it mandatory that a writ of re-summons issue in an action of ejectment when a party defendant has failed to appear in accordance with the said provisions of section 1125 of the Civil Procedure Law. Predicated upon the above, it is the determination of this Court that the ruling of the Chambers Justice be, and the same is, hereby affirmed. Costs in these proceedings are ruled against the appellants. And it is hereby so ordered. Ruling affirmed.