STEREO HOTEL, Appellant, v. S. & A. CONSTRUCTION AND TRADING CO., Appellee.

APPEAL FROM THE DEBT COURT, MONSERRADO COUNTY. Argued December 4, 1972. Decided February 1, 1973. 1. The Supreme Court will consider only those exceptions which properly appear in the bill of exceptions upon which the appeal is based. 2. Execution of a judgment is stayed only when an appeal is taken from such judgment and not when an appeal is taken from a ruling denying a motion to stay execution of judgment. 3. A party to a stipulation filed with a court is estopped from denying the legality of the trial court’s enforcement thereof. 4. Parties may stipulate for entry of judgment by confession on unmatured notes by acceleration thereof upon default in payment of a prior note due. 5. Courts are bound to enforce stipulations which parties may validly make, when they are not unreasonable or against good morals or sound public policy.. Appellant issued twenty-six promissory notes for $r,000.00 to the appellee, covering the agreed-upon amount for the reconstruction of a hotel owned by the appellant. After six of the notes had been dishonored, appellee sued in the Debt Court for $6,000.00. On the day of trial the parties filed a stipulation, whereby they provided for settlement of the action. The defendant, in effect, confessed judgment for the total amount, agreeing to pay the debt in installments, default upon any rendering the total amount due and payable, for which execution might issue for satisfaction of the judgment. Upon default in the initial payment of $ro,000.00, plaintiff requested of the court judgment in the sum of $26,000.00, which was granted and a bill of costs and a writ of execution were served on defendant which filed a motion to stay execution. The motion was denied and defendant appealed, contending the trial court was in error for issuing a writ of execution for $26,000.00 in an action of debt com415 416 LIBERIAN LAW REPORTS menced for $6,000.00. The Supreme Court affirmed the action of the lower court in issuing the writ of execution for the greater amount. firm, No appearance for appellant. P. zlmos George law by Raymond Hoggard, of counsel, for appellee. JUSTICE HENRIES MR. Court. delivered the opinion of the After several requests for postponement by appellant’s counsel, when this case was called for hearing he was not present and had not filed a brief, even though a notice of assignment had been served upon him and returned. Appellee’s counsel then requested the Court to apply Rule IV, Part 6 of the Revised Rules of the Supreme Court of July 1972. The Court applied the Rule insofar as it relates to hearing the argument of the appearing party, appellee in this instance, where the other party neither appears nor files a brief. According to the record certified to this Court, the appellant concluded an agreement with appellee for the reconstruction of appellant’s building, situated at the intersection of Center and Benson Streets, Monrovia, at an agreed price of $26,000.00. Appellant, not having the money to pay for the reconstruction, issued twenty-six promissory notes of $1,000 each to the appellee to be paid monthly, commencing upon the completion of the building. Appellee completed the building and, as the promissory notes matured, presented them for payment, but they were dishonored. On September 12, 1970, six of the promissory notes having matured, the appellee, after several demands for payment of the $6,000.00 due, instituted an action of debt against appellant in the Debt Court of Montserrado County, sitting in its September 1970 Term. When this case was called the appellant entered into a stipulation LIBERIAN LAW REPORTS 417 with the appellee and filed it on November 13, 1970, after counsel introduced it for the record. “At this stage defendant by and through its counsel . . . makes the following submission: That realizing and acknowledging its indebtedness to the plaintiff made and entered stipulation on November 4, 1970, subject of this submission, which spells out the terms and conditions for the payment and settlement of the aforesaid amount sued for as well as other promissory notes not included in the action, to which the defendant submits. “The plaintiff by and through its counsel accepts the submission in keeping with the terms of the stipulation before this Court and prays that this Court will render judgment, and submit.” The stipulation they referred to has been set forth. “Whereas, on the 1 zth day of September, 1970, a writ of summons was issued and served on the defendant herein in an action of debt; and “Whereas, the defendant acknowledges its indebtedness to the plaintiff in the sum of Six Thousand Dollars ($6,000.00), the amount sued for, as well as in an additional amount of Four Thousand Dollars ($4,000.00), being the aggregate value of a series of ten promissory notes issued by the defendant in favor of the plaintiff, maturing respectively from March 1970 to December 30, 1970, the remaining notes in the aggregate value of Sixteen Thousand Dollars ($16,000.00) maturing at later dates respectively; and “Whereas, the said defendant desires to enter into an agreement for the true and faithful payment of the said amount in installments and the plaintiff has accepted said proposal; “Now, therefore, these stipulations made and entered into the 4th day of November 1970, by and between Stereo Hotel, defendant, and S. & A. Construction Company, plaintiff, hereby 418 LIBERIAN LAW REPORTS “Witnesseth : (t r. That for and in consideration of the plaintiff’s desisting from further prosecution of the action of debt suit . . . defendant doth hereby confess judgment in said amount of Six Thousand Dollars ($6,000.00) sued for, as well as the amounts covered by the promissory notes issued by the said defendant herein, to the said S. & A. Construction Company and therefore covenants, promises and agrees to faithfully pay or cause to be paid to the plaintiff, through the Debt Court for Montserrado County, Republic of Liberia, the total amount of Twenty-Six Thousand Dollars ($26,000.00), in the manner as follows : “(a) Ten Thousand Dollars ($io,000.00) on the 31st day of January, 1971, and thereafter commencing with the 28th day of February, 1971, One Thousand Dollars ($1,000.00) monthly until the entire amount is completely and fully paid, with interest at the rate of 5% per annum. “(b) It is further agreed that in the event of failure on the part of the defendant to make payment of the amounts as herein stipulated, or any of the instalment payments hereinabove mentioned, the entire unpaid balance shall become immediately due and payable, and in which event, the court may proceed with a satisfaction of the judgment, as it may deem legal and expedient, as though new and separate actions were instituted for each promissory note.” In keeping with the stipulation, when the time came for payment of the $1o,000.00, that is to say on January 31, 1971, appellee went to the court to obtain said amount but the appellant appeared in court and requested ten days within which to pay said amount. The request was granted but still the amount was not paid. On February 12, 1971, a request was made to the court by the appellee. “S. & A. Construction Company, plaintiff in an ac- LIBERIAN LAW REPORTS 419 tion of debt against Stereo Hotel, wishes to observe that a stipulation was filed before this Court on the 14th day of November, 197o, in which the defendant accepted that he is indebted to plaintiff in the amount of Twenty-Six Thousand Dollars ($z6,000.00) of which amount the defendant promised to pay Ten Thousand Dollars ($ro,000.00) on the 31st day of January, 1971, and commencing February 28, 1971, to pay One Thousand Dollars ($1,000.00) monthly until the entire amount of Twenty-Six Thousand Dollars ($26,000.00) was fully and completely paid with interest at the rate of 5%. “Today is the i2th day of February and the amount as stipulated has not been paid. Plaintiff prays the court therefore to issue execution against the defendant in the sum of Twenty-Six ($26,000.00) Dollars and in consonance . . . judgment of this payment to court, and to adopt such measures as would ensure the immediate payment of said amount.” The appellee’s request for a judgment of $26,000.00 was granted, a bill of costs and a writ of execution were executed and served on the appellant, which in turn filed a motion to stay execution, contending that the execution was not obtained in harmony with the civil procedure in vogue in this jurisdiction.” This motion was resisted by the appellee, and dismissed by the trial court. It is from this ruling that appellant excepted and appealed to this Court. The appellant filed a bill of exceptions consisting of one count in which he contended that, since the appellee had instituted an action of debt for the recovery of $6,000.00, it was error for the trial judge to issue a writ of execution for $26,000.00 and therefore the writ of execution was void and unenforceable. At the outset, it is interesting to observe from the certified record that the appellant did not except to the judgment requiring it to pay $26,000.00 but instead excepted ” 420 LIBERIAN LAW REPORTS to a ruling denying its motion to stay the execution which sought to enforce the judgment. It is settled that only such matters as were interposed in the lower court and appear in the bill of exceptions as part of the record can be taken cognizance of in the appellate tribunal. Bryant v. African Produce Co., U.S.A., [1940] LRSC 4; 7 LLR 93 (1940). With respect to the appellant’s motion to stay execution, this Court is uncertain as to the relief being sought but, in any event, the Civil Procedure Law, L. 1963-64, ch. III, � 4469 (2) and especially section 512o, provides for stays of execution. Section 5120 specifies the effect of an appeal as a stay of execution: “On announcement of an appeal by a defendant, no execution shall issue on a judgment against him nor shall any proceedings be taken for its enforcement until final judgment is rendered, except that on an appeal from an order dissolving an order granting a preliminary injunction, such preliminary injunction shall be in force pending decision on the appeal.” The appellant did not follow this procedure or state any ground upon which the motion could have been granted, and therefore the trial judge did not err in denying the motion. Turning to the single count in the bill of exceptions, it is true that originally the action was to recover an indebtedness of $6,000.00, because at that time only six of the twenty-six promissory notes had matured, even though the full amount due appellee was $z6,000.00. However, subsequently, in the stipulation entered into between the parties to the suit, the appellant confessed judgment in the amount sued for “as well as the amounts covered by the promissory notes,” and agreed to pay through the Debt Court $z6,000.00 which represented the total amount covered by the promissory notes. It was also agreed that upon failure to pay the amounts stipulated or any of the instalments, the entire amount of $26,000.00 LIBERIAN LAW REPORTS 421 would become due immediately and the Court could permit satisfaction of the judgment, “as though new and separate actions were instituted for each promissory note.” In addition, at the time of the filing of the stipulation, the appellant placed on the record that the stipulation “spelled out the terms and conditions for the payment and settlement of the aforesaid amount sued for as well as the promissory notes not included in the action.” Upon the appellant’s failure to settle its indebtedness as stipulated, the court, having confirmed the stipulation, proceeded to enter judgment in accordance with the stipulation. As a party to the stipulation the appellant is estopped from declaring the trial court’s action illegal. Smith v. Page, LLR 146 (1952). The only reason appellant gave for asking the court not to enforce the judgment was that the amount sued for was $6,000.00 and not $26,000.00, but it is difficult to uphold this contention in view of the stipulation entered into between the parties, and in view of the fact that appellant did owe appellee $26,000.00 at the time the suit was commenced. The fact that some of the promissory notes might not have matured at the time of rendition of the judgment does not in itself make the judgment invalid, for it has been held that while ordinarily a judgment by confession may not be entered before the note or other obligation becomes due, yet where the terms of the instrument expressly authorize the entry of the judgment at an earlier time, judgments confessed to secure unmatured obligations may be adjudged proper without respect to the time when the obligation is due. 31 AM. JUR., Judgments, � 472. Since the trial judge was being guided by the stipulation, it is necessary to determine whether the stipulation should have had any effect on the disposition of the case in the court below. According to legal authorities : “A stipulation is an agreement, admission or concession made in a judicial proceeding by the parties thereto in respect 422 LIBERIAN LAW REPORTS of some matter therein for the purpose ordinarily of avoiding delay, trouble and expense.” si AM. JUR., Stipulations, � 2. Stipulations “should receive a fair and liberal construction, in harmony with the apparent intention of the parties and the spirit of justice, and in the furtherance of fair trials upon the merits, rather than a narrow and technical one calculated to defeat the purpose of their execution; and in all cases of doubt that construction should be adopted which is favorable to the party in whose favor it is made.” Brown v. Cavalla River Co., Ltd., 12 LLR 1 36, 1 39 ( 1 954)The primary rule in the construction of stipulations is that the court must, if possible, ascertain and give effect to the intent of the parties. 83 C.J.S., Stipulations, � Courts are bound to enforce stipulations which parties may validly make, when they are not unreasonable or against good morals or sound public policy. 83 C.J.S., Stipulations, � 17; see also so AM. JuR., Stipulations, � 12. Since there has been no showing that the stipulation’ is either unreasonable or against good morals or public policy, or that the court acted improperly in construing it, and it having been shown that the appellant voluntarily entered into the stipulation, and was in agreement with its terms, it is the holding of this Court that the trial judge was correct in entering a judgment in accordance with the stipulation, and in enforcing that judgment by execution. In view of the foregoing, the judgment of the Debt Court is hereby affirmed with costs against appellant. It is so ordered. Affirmed.