CHURCHILL THOMAS, Appellant, v. GABRIEL L. DENNIS, Secretary of the Treasury of Liberia, Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Argued January 15, 16, 21, 22, 1936. Decided January 31, 1936.
1. The word “previous” found in chapter V, page 45, section 6 of the Old Blue Book should be read into section 23 of chapter IV, page 44, and section 7 of chapter VI, page 48 of that statute.
2. Hence, whenever a pleading is amended, whether it be that of plaintiff or defendant, or, a case having been dismissed, plaintiff desires to refile, the costs must first be paid previous to the amendment or refiling, as the case may be.
3. Actions are commenced and defendants brought before the court by means of writs served upon defendants, and duly returned.
4. If, then, a writ summoning defendant to appear is not properly served or properly returned, it is not an immaterial error, but one necessitating the dismissal of the case.
5. In suits commencing with a writ of attachment, the amount of bail required shall ordinarily not exceed $100.00.
6. In an action of damages for an injury to the person or the reputation of plaintiff or his wife, however, plaintiff may exhibit to the judge ordering the attachment evidence that the injury alleged to have been sustained exceeds $100.00, in which event the judge may direct that the attachment issue for a sum in excess of $100.00.
7. The law does not favor the arrest of defendants in civil cases ; hence all statutes permitting the arrest of defendants in civil suits must be construed strictly.
8. When the jurisdiction of a Circuit Judge assigned to preside within a given circuit shall have expired either by his adjournment before the term normally expires, or by effluxion of time, he loses trial jurisdiction except for the purposes of hearing motions arising out of cases already determined and giving judgments thereon, or approving bills of exceptions, all of which should be concluded within ten days.
9. He can exercise trial jurisdiction thereafter only in the event (a) a case in which a jury was impanelled before the end of the trial term had not been concluded, or (b) in the event he had received a special assignment from the Chief Justice which had extended his jurisdiction beyond the term.
10. Nor does the Special Jury Act of 1934 permit a Circuit Judge assigned to a circuit to extend the term for which he was assigned without a special assignment previously made by the Chief Justice.
This was an action to recover damages for libel brought by the appellee, plaintiff below, in the Circuit Court of the First Judicial Circuit, Montserrado County. Judgment was rendered for the plaintiff, and defendant appealed to this Court. Judgment reversed and complaint dismissed with privilege to file a new action.
Anthony Barclay for appellant. H. Lafayette Harmon and William V. S. Tubman for appellee.
MR. JUSTICE RUSSELL delivered the opinion of the Court.
This is an appeal from a final judgment rendered against appellant in this case in the Circuit Court of the First Judicial Circuit, Montserrado County, at its November term, 1934, awarding appellee damages in the sum of five thousand dollars and all costs of the action.
The records in the case complain that the appellee published in the Weekly Mirror of April 13, 1934, a report of the travelling staff of his department of government which report, it is alleged, actuated the appellant on the 20th day of April in the year aforesaid to publish an article in volume 8, number 8, of the Liberian Patriot entitled “Increase of expenditure instead of reduction,” which article reads word for word as follows :
“The Editor of the Mirror published on the 13th instant the report of the Travelling Staff, which I have decided to express my views through the medium of this journal to citizens generally and Government specially. First of all I desire to welcome the staff home and appreciate very much the change in the system to realize $30,947.74 this year in reduced expenses and in increased revenues, but wish the staff to discontinue expending unnecessarily Government money for pleasure trips. I am aware of indications of continued world wide depressed economic conditions which demand strictest conservation of resources. Is the staff ignorant of this fact? It appears so. An outraged citizen guessed almost rightly in the ‘Mirror’ $1,500.00 to be the amount not much less expended by the staff. The difference now as I am given to understand between the outraged citizen’s statement and the actual figure is only $343.00. You can see plainly that the expenses from an accounting point of view that the figures had been duped. The actual expenditure shows $1,156.10 or £240 17s. id. It is understood that an amount of £100 0s 0d equivalent to $480.00 was paid to the Secretary of the Treasury as an advance to be accounted for on his return ; has this been accounted for? If not, why not? No mention of this was made in the Mirror. The policy is adversary to the wonderful Treasury report for the fiscal year last. Rather a bill for reimbursement of $434.90 has been submitted as I am given to understand, for payment which implies that this amount had been advanced, the two amounts show the actual expenditure of $914.90. Since this amount of $914.90 in cash advanced to be accounted for, what a bill of $145.20 plus $96.00, making a total of $1,156.10 for the trip? Does it not show a duping of figures as falsification of that account of real expenses made for the trip. Attention of the auditor is called to scrutinize carefully this account of the Travelling Staff and disallow all unnecessary expense, putting aside friendship and to execute his duties as implicit confidence has been placed in him by the President to faithfully discharge his duty. My recollection of the past regularity of the audit system when under the employ of the Government in the Bureau of Audit is, that the Auditor always disallows frivolous bills which are unwarrantable; I conceive that the freight of a motor-boat and a cycle for Secretary Dennis has to be paid from the Government funds. Is this a saving, or increasing the revenue? Another expense for the trip to Cape Count has been made and probably expected to be paid from Government funds ; if this is tolerated by the Government, unemployed persons might as well be seen after or quick settlement of the loan. Looking at the vast amount that we owe the Finance Corporation the principal and interest on the loan, this amount of $1,156.io expended for the trip to Cape Palmas would have been applied against our floating debt and not for individual pleasure trip. Is this the kind of Secretary the Mirror says we want? Fellow citizens, I am afraid that at this rate we shall always be indebted and unable by such expenditure to pay our debt. It is a fact and I give you to clearly understand this and I hope all good thinking Liberians will support my views. It is hoped however that the sympathy of the Secretary will be extended in future after further deep consideration of the financial difficulty of this country and freely give as his immediate head, part of his salary annually to increase the revenue, or avoid unnecessary expenses. The absence of such sympathy would make the Government suffer. The Secretary is a man of good standing and his sympathy is implored.”
CHURCHILL THOMAS.
This publication as well as all other subsequent publications of the appellant the appellee considers to be “false, libellous and defamatory.”
Upon the appearing in print, and the circulation of this alleged false, libellous, and defamatory article, on the 7th day of May, 1934, appellee addressed a letter to the appellant requiring his authority for said publication and further informed him that upon his failure to justify his said publication, he would subject himself to the entire responsibility for said publication.
Appellant, on the 9th day of May, 1934 replied to appellee as follows:
“While acknowledging the receipt of your 1962/ 186/534 of yesterday’s date, referable to the ‘subject matter ‘Increase of expenditure instead of reduction,’ an article written by me in the ‘Liberian Patriot’ on the 28th ultimo, I fail to see your effort to assign reasons for questioning my constitutional rights. Are you conscientious [sic] of the article you have termed libellous? You are welcome to institute an action against the publisher for the publication which you say is libellous; perhaps then more facts will be disclosed to the astonishment of the public and such is my determination. Wishing you further to enjoy your substance in the pink of health.
“Yours truly, CHURCHILL THOMAS.”
This reply of the appellant aggravated the appellee and caused him on the 1st day of October, 1934, to file a complaint against the said appellant in an action of damages for libel in the Law Division of the Circuit Court of the First Judicial Circuit, Montserrado County, at its November term, 1934.
The plaintiff in the court below, now appellee, on the said first of October, filed his written directions, complaint, affidavits and the judge’s order in the office of the clerk of the aforesaid court. The appellee in count three of his aforesaid written directions commanded the clerk of the court aforesaid to issue a writ of attachment directed to the sheriff to attach the lands, goods, chattels, money, and credits of the said appellant, defendant in the court below, to the amount of seven thousand five hundred dollars, the same to cover once and one-half of the damages prayed for.
He further commanded the said clerk in count four of his said written directions that: “In the event the said writ of attachment should prove ineffective, you are to issue a writ of arrest against the said defendant, now appellant, in keeping with the judge’s orders herewith filed, that he may appear and give bond in the sum of seven thousand five hundred dollars to secure said damages according to law.”
The appellant, in answering appellee’s complaint, pleaded substantially the following: That the costs of the former case upon the same subject matter which was dismissed by the trial court had not been paid before the renewal of the present case in which the appellant had been arrested and had given bond and filed his appearance; that the written directions filed are faulty and misleading because they did not instruct the clerk of court to instruct the sheriff that in case the writ of attachment was served and satisfied, he should not serve the writ of arrest issued simultaneously, but that instead, said written directions in paragraph 5 thereof read : “In the event the said writ of attachment proves ineffective, you are to issue a writ of arrest against the said defendant in keeping with the judge’s order herewith filed, that he may appear and give bond in the sum of seven thousand five hundred dollars to secure said damages according to law.” Defendant therefore contended that the writs of attachment and arrest having been issued at the same time and not after the writ of attachment had proved ineffective, were not in keeping with the written directions filed, and therefore were confusing and misleading, for which further` reason he prayed the dismissal of the case with costs against plaintiff, now appellee.
In count 4—That the writ of attachment was not served upon him as provided by statute because no effort was made by the sheriff to serve the writ of attachment before the service of the writ of arrest on him.
In count 5—The appellant further says that the writ of arrest had been served illegally upon him in that it was served before the writ of attachment proved ineffective, (as was the specific direction contained in the said written directions) and prays that the said writ be quashed and his bond be returned.
In count 6—That the complaint of the plaintiff is defective and bad for non-joinder of parties, because T. E. Kla ‘Williams, editor of the Liberian Patriot, who is publisher of the aforesaid libel, ought to have been made a co-defendant in this case and prays the dismissal of said complaint with cost against the plaintiff, now appellee.
In count 9—The bond of $7,5oo.00 required is excessive and not in keeping with the statute law of this Republic governing actions for injuries to the reputation, since plaintiff did not exhibit to the court any evidence to entitle him to demand of defendant such a bond, except his defective complaint. Defendant prays under the law controlling this action that he should only have been required to give a bond of one hundred dollars, and prays that said bond be vacated.
The plaintiff sets up in count thirteen of his reply that, “as to the 3rd, 4th and 5th pleas of defendant, the writs of attachment and arrest were issued and the arrest made in keeping with the law” in that the said defendant failed to show the sheriff sufficient . property to be attached.
Count fourteen of the aforesaid reply alleges : “That T. E. Kla Williams, the Editor of the Liberian Patriot, not being also a distributing agent, is not a necessary party to this action and his complaint ought therefore not to be dismissed.”
Count fifteen of the reply alleges: “That the complaint of the plaintiff is not misleading or indistinct and therefore ought not to be dismissed as set up and prayed for in pleas seven and eight of the answer.”
The reply further alleges in count sixteen : “That the bond of the defendant is not excessive as a similar bond had been given by the plaintiff in the former action which had been dismissed and said bond so given in this action ought not to be cancelled, the same being in keeping with law.”
The defendant in count twenty-seven of his bill of exceptions sets up the following: “And also because on the 26th day of December, 1934, Your Honour ordered a notice sent out which was signed for the Clerk by one Beysolow, not being addressed to anyone, and having no seal of the Court affixed thereto, upon the calling of the case Gabriel L. Dennis, Secretary of the Treasury, plaintiff versus Churchill Thomas, defendant, action of Damages for Libel, defense counsel announced that they appeared specially to raise the following questions and pointed out:
“1. That said purported notice was defective on the ground above mentioned herein.
“2. That Your Honour having been assigned to the first judicial circuit to preside over the regular jury session of the November term of said court Your Honour adjourned same sine die on the 13th day of December, 1934, and had only ten days thereafter in accordance with statutory law in order to finish up the business of the regular session; that those ten days expired on the 23rd instant after which time Your Honour lost jurisdiction both over the person and subject matter of the case, since from the expiration of the said ten days the February term A.D., 1935, having also automatically immediately commenced.
“3. That in keeping with law His Honour Nete Sie Brownell, resident judge, had already assumed jurisdiction over the circuit and instructed the Clerk to placard notices to all attorneys and counsellors that he would convene court on the 3rd day of January, 1935, which had been done.
“4. And that the minutes of the 22nd December just adopted to-night also show that Your Honour was conscious of the fact, notwithstanding these objections to Your Honour’s further jurisdiction over the Circuit Court and case, Your Honour overruled same, and proceeded with the case to which defendant excepted.”
The foregoing in our opinion are the salient law issues raised in this case. We will therefore proceed to decide same as the statute provides.
By inspection of the records in the case, we find that the sheriff, as the ministerial officer of the Circuit Court of the First Judicial Circuit, Montserrado County, in answer to a letter from the defendant’s counsel, wrote the following:
“MONROVIA, LIBERIA,
October 23rd, 1934.
“MESSRS. BARCLAY AND BARCLAY, LAW FIRM, MONROVIA. “DEAR SIRS,
“I have the honour most respectfully to acknowledge receipt of your despatch of the 2nd instant. In reply to said despatch I have the honour to say in the case Gabriel L. Dennis, Secretary of the Treasury, versus Churchill Thomas, action of Damages for Libel ; up to the serving of the writ of arrest upon the body of Churchill Thomas, defendant, no costs had been paid over to me by the said plaintiff.
“I have the honour to be,
Sirs, Your obedient servant, [Sgd.] R. H. DENNIS,
Sheriff, Montserrado County.”
The statute governing the payment of costs previous to amendments and renewals of cases in our opinion refers both to the plaintiff and the defendant in all cases ; and the word “previous” found in chapter V, page 45, section 6 of the Old Blue Book should, in our opinion, be read into chapter IV, page 44, section 23, and chapter VI, page 48, section 7, the three chapters which in our statute aforesaid deal with complaints, answers and subsequent pleadings.
We are of opinion that counts one and two of the defendant’s answer are supported by law and should have been sustained by the court below, and that the action should have been dismissed. It is, therefore, necessary for us to assert unequivocally that when a party intends either to withdraw a case with the express reservation to renew same, or to amend a previous pleading duly filed, the accrued costs incurred by his opponent in the case to be renewed, or in the pleading to be amended, should be first paid before the case is either renewed or the pleading amended. If the case is being withdrawn, then entire costs so far incurred by the opponent should be refunded him; but if it is merely a pleading that is being amended, then only the costs incurred by the opponent in the filing of the pleading preceding the pleading to be amended shall be refunded. In the case at bar, it would appear that there was a former case of the same nature duly filed and the pleadings concluded ; that upon the hearing of said pleadings by the judge resident in the Circuit, he dismissed said case and ruled plaintiff to pay all costs of action without prejudice. The plaintiff accepted this ruling of the resident judge’s, and thereupon renewed the action. It is the opinion of this Court that this was an entirely new case, and the entire costs of the case dismissed should have been fully paid before the new action was entered. That not having been done, this Court is bound to sustain counts i and 2 of the answer of appellant.
This Court will now proceed to examine the questions presented in counts 3 and 4 of the answer as previously set out herein: (a) That the written directions of the plaintiff had not been literally obeyed in that a writ of arrest was issued simultaneously with the writ of attachment, and that the writ of attachment had not been returned as “ineffective” before defendant was arrested; (b) that the writ of attachment was never served upon defendant before the writ of arrest; (c) that the writ of arrest, having been served illegally on defendant before the writ of attachment had proved ineffective, should have been quashed and defendant’s bond delivered to him.
From the ruling of the trial judge on the pleadings it is to be noted that the judge discovered that the sheriff, to use the judge’s own words, “ordered an inexperienced bailiff to serve the writs, who, defendant claims, failed to serve the writ of attachment, but served the writ of arrest in the first instance, contrary to the express orders of the plaintiff as set forth in his written directions.” The judge, however, held that “this was evidently a mistake of the sheriff, and not that of .the plaintiff” ; hence decided he, “this Court fails to see any reason why it should operate against his interest,” citing as his authority the case Jantzen v. Freeman, [1914] LRSC 6; 2 L.L.R. 167, 4 Lib. Semi -Ann. Ser. 17-23 (1914).
This Court says that it is a fundamental principle of law that “actions are commenced and defendants brought before the courts by means of writs.” Stat. of Lib. (Old Blue Book), ch. II, p. 33, § 1. And that it is the writ of summons or notice served and the returns thereto made, which give the court jurisdiction over the case. Mc-Auley v. Laland, I L.L.R. 254 (1894) ; Brownell v. Brownell, [1936] LRSC 3; 5 L.L.R. 76 (1936).
If the trial judge from an investigation held in the premises discovered, as was the case, that the writ of attachment which alone contained the summons for defendant to appear and answer, and which also directed the sheriff to attach his lands, goods, chattels and credits to the amount of $7,500.00 was not served, but that a writ of arrest which is the plaintiff’s last remedy to secure defendant’s appearance had been erroneously served, his (the trial judge’s) duty was to have dismissed said action because there was no foundation for the suit. The foundation of the action having been found to be faulty, the superstructure crumbled. The trial judge therefore erred in overruling counts 3, 4, and s of the defendant’s answer.
Coming to the sixth plea of the defendant’s answer which raises the question of non-joinder of parties, to wit: that T. E. Kla Williams, editor of the newspaper in which the alleged libellous and defamatory matter was published, and who published and circulated same, had not been made a party-defendant, we will observe that our statutes have prescribed as follows :
“All those who make, publish or circulate a libel are guilty of the injury of defamation.”
“He is the maker of a libel who originally contrived it, and either executed it himself, or caused it to be done by others.”
“He is the publisher who executes the mechanical labour, who writes, paints, copies, or prints it. He circulates a libel who knowing the contents sells, gives, distributes, reads it to others, or exhibits it.”
But inasmuch as the counsel for appellant arguing the case before this Court contended, in our opinion correctly, that the form of the demurrer raised in appellant’s answer on this point did not give sufficient notice of the manner in which his argument was presented to this Court, we have decided to refrain from making any comment whatever upon said issue.
As to count 9 of the answer which raises the question that the bond of $7,5oo is excessive under the statutes governing actions for injury to the reputation, since plaintiff did not exhibit to the court evidence to entitle him to demand of defendant such a bond, “except his defective complaint,” this Court says : In the statute governing bail in attachment proceedings it is provided that:
“The sum specified in any writ of attachment, shall not exceed the sum of one hundred dollars, unless in the cases hereinafter otherwise provided for.” Stat. of Lib. (Old Blue Book), ch. II, p. 34, § 9.
The cases otherwise provided for in section 10, following section 9 above quoted, are : (a) an action of damages for an injury to the person, or reputation of the plaintiff or his wife ; or for such other injury as cannot be conveniently estimated in money. In any of such cases plaintiff may “make an affidavit or affirmation of the sum due to him, or of the injury he has received, and of the damages he believes he has sustained ; and in that case the writ of attachment shall direct the sheriff to attach property to an amount equal to the amount of the debt or damages so sworn to, and half as much more, so as to answer interest and cost, as well as the debt or damages.” But nevertheless, in the event the suit be for an injury to the person or to the reputation of the plaintiff or his wife or for any injury which cannot be exactly estimated in money, then, in such event, the principle controlling in applications for writs of attachment is that contained in the said chapter II, page 36, section 28 which reads as follows :
“If the complaint be filed in an action of damages, for an injury to the person, or reputation of the plaintiff or his wife, or any other injury which cannot be easily estimated in money, and the plaintiff be not satisfied with a writ of attachment to the amount of one hundred dollars, he may apply to the court, or any judge thereof, and exhibit such evidence of the injury, and of other matters connected with the subject, by his own oath or otherwise as he may think proper, and the court or judge may direct such sum as may be proper, to be inserted in the writ of attachment. . . .”
The law does not favor the arrest of defendants in civil actions, and hence all statutes which permit a defendant in a civil suit to be arrested must be construed strictly. For, a man’s liberty is too sacred to be wantonly restrained. We think it an essential prerequisite to the issuance of a writ of arrest that some evidence of the injury suffered should have been exhibited to the court showing that the plaintiff was entitled to a greater amount of security than the $100.00 prescribed generally by the statute; upon such evidence having been received, then, and only then, might the judge have ordered the issuance of an attachment over and above $100.00, to such an amount as he may, in his discretion, consider adequate, in view of the evidence exhibited ; and if the writ of attachment should prove ineffective, then and then only the court again in excercise of a sound discretion, may have ordered the arrest of defendant to secure his appearance at the trial, and to answer plaintiff in his suit for damages.
We are therefore of opinion that the 9th plea of defendant’s answer should have been sustained by the trial court, and the bail re-examined and reduced upon the court’s attention having thus been directed to the illegal procurement of said amount as bail since it was admittedly excessive. Lib. Const., art. I, sec. 10, prohibiting the demanding of “excessive bail.”
Lastly, coming to the 2nd, 3rd, and 4th sub-sections of the 27th count of the defendant’s bill of exceptions which raise the question of the jurisdiction of the trial judge after the effluxion of the time of his assignment when he had not concluded his business, this Court says that the Circuit Court Judges are by the provisions of law assigned by the Chief Justice to hold specified sessions of court. They cannot legally exceed the term of the mandate under which they preside over the various circuits.
When the trial judge in this case sua sponte adjourned the November term of court sine die on the 13th day of December, 1934, he ought to have known that he, by his own act, had limited the time of his assignment over the First Judicial Circuit in that, although he , may have proceeded to try the case at bar after the 19th of December if he had not already adjourned sine die, provided his term had not then expired by operation of law, or provided he had a special assignment from His Honor the Chief Justice enabling him to function beyond said term, yet when he had adjourned the term sine die on said 13th day of December, 1934, he thereby limited his further authority within said Circuit to ten days only, and within which ten days his duties were confined to hearing motions, approving bills of exceptions, and disposing of other secondary matters. His jurisdiction as an assigned judge therefore expired on the 23rd of December, 1934, and hence it was that the judge resident within the circuit had ordered a notice placarded for session of court over which the resident judge ought by law to preside to begin on the 3rd of January, 1935. But the judge assigned continued to hold trial jurisdiction of the court until the 26th of December, three days after his dominion in the Circuit Court was at an end. This Court feels that he exceeded his jurisdiction conferred by the statute laws of the Republic and the assignment of His Honor the Chief Justice. The case would have been different if the trial judge had had a special assignment to hold a special jury session after the regular trial term, or if as the resident judge of the circuit he had proceeded as such resident judge to hear and determine the matter as the judge resident within the circuit. In this instance the assigned judge had no such special assignment, and hence was not warranted in continuing to preside in the circuit after the 23rd day of December, 1934. The trial having outrun the jurisdiction of the trial judge, he should have ipso facto awarded a new trial and left the circuit. An assigned judge may impanel a jury to try any case on the docket within the twenty-one days provided by the statute which extends the time of the sitting of the jury sessions from two weeks to three weeks. If such a jury is impanelled within the twenty-one days, the trial judge has jurisdiction up to the conclusion of his business, and then he may adjourn said jury session sine die. He shall have jurisdiction ten days thereafter to wind up his other business, such as hearing motions, approving bills of exceptions, etc. A contrary proposition which holds that a Circuit Judge, by virtue of the Special Jury Act, approved January 19th, 1934 (L. 1933-34, ch. X, § 2), has power to remain in a circuit as long as he thinks fit and as long as he has business, would destroy the Circuit Court system so judiciously set up; and any arrogant judge assigned to a circuit may refuse to surrender the circuit to the resident judge and thereby attenuate the force of the assigning power of the Chief Justice whereby eventually it might become practically a nullity. We are sure that the Special Jury Act never contemplated such confusion and such an anomaly.
Having carefully reviewed all the points which are of any consequence as raised in the pleadings of both plaintiff and defendant in the court below, we have arrived at the following conclusions:
That the trial judge erred in submitting this case to a jury to be heard on its merits in the face of all the material errors apparent in the written pleadings of the plaintiff; the judgment rendered in this case would therefore appear to be illegal and should be reversed.
The issues of law raised in the answer and all subsequent pleadings of the defendant should be sustained.
The complaint and all other written pleadings of the plaintiff, now appellee, should be dismissed with all costs against the plaintiff, after payment of which he may be privileged to file a new action for the injury he believes has been done him; and it is so ordered.
Reversed.