HAM IDO TOURE, Appellant, v. MOH AMAD MONHDI FAHS, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued October 25, 1962. Decided February 8, 1963. 1. Service of notice of completion of an appeal after the expiration of the period of time statutorily prescribed for such service is ground for dismissal of the appeal. 2. An appellee’s acknowledgment of untimely service of completion of appeal does not constitute waiver of such appellee’s right to move for dismissal of such an appeal on the ground of untimeliness. On appeal from a judgment in involuntary proceedings in a matter of debt, appellee’s motion to dismiss the appeal for untimeliness was granted. M. M. Johnson for appellant. Clarence 0. Tunning for appellee. MR. Court. JUSTICE MITCHELL delivered the opinion of the From the records brought before this Court, it is observed that, predicated upon � 83o of Title 15 of the 1956 Code, which provides for the institution of involuntary proceedings in matters of debt, one Clarence 0. Tunning, of counsel for Mohamad Monhdi Fahs, the above-named appellee, appeared before the judge presiding over the March, 1962, term of the Circuit Court of the Sixth Judicial Circuit, Montserrado County, on April 2, 1962, which was the eleventh day’s sitting of the regular session of that term of the court, and made the following complaint on the records : “Clarence 0. Tunning, a licensed lawyer, and of counsel for his client, Mohamad Monhdi Fahs, comes before Your Honor and says that one Hamido Toure, 252 LIBERIAN LAW REPORTS 253 residing on 45 Randall Street, Monrovia, Liberia, is indebted to his said client in the sum of $300, which, as per written instrument dated September 28, 1961, he there avowed to pay the said Mohamad Monhdi Fahs as aforesaid in three installments as specified, and which he has failed or neglected to comply with in keeping with the terms as quoted in said instrument herein referred to, and begs to bring same to Your Honor for Your Honor’s satisfaction. “Wherefore, the said Mohamad Monhdi Fahs, as aforesaid, through his said counsel as aforesaid, prays that Your Honor will, because of the refusal of the said debtor to settle said debt although plaintiff’s demand has been made for the same, order that the said debtor be summoned to appear before Your Honor for examination as to the facts and circumstances relating to said debt, and that he will be compelled to pay the same or be dealt with according to law.” Upon the above-quoted complaint, the judge presiding ordered the necessary writ of summons issued and placed in the hands of the sheriff requiring him to summon the said Hamido Toure to appear. The defendant accordingly appeared before the court with his witnesses on April 3, 1962, for examination, together with Counsellor M. M. Johnson, of counsel for the said defendant. The witnesses were duly examined by the court, and the following ruling was made on the record : “That the claim of the plaintiff be and the same is hereby granted, and defendant’s counterclaim is denied for lack of proof, and for not having stated any specific amount as aforesaid. The defendant is adjudged liable to plaintiff in the sum of $300, as per note of hand of September 28, 1961 plus 6% interest and costs to be forthwith paid in keeping with this judgment; and if the defendant has not sufficient property or assets to satisfy this judgment, the rules of insolvency shall be invoked. And it is so ordered.” 254 LIBERIAN LAW REPORTS From this ruling the defendant, being dissatisfied, recorded his exceptions and prayed for an appeal before this Court for further adjudication of a bill of exceptions. During the course of the sitting of this term of Court, appellee’s counsel filed a motion to dismiss the appeal, and moved the Court for advancement of the cause for hearing. This application was granted, and the case was assigned for hearing on October 2S, 1962. At the call of the case, the said motion was read. The grounds presented therein are as follows : It ‘. Because appellant has failed to file an appeal bond as the statutes of Liberia mandatorily require. “2. Because appellant has failed to have issued and served on the appellee his notice of the completion of his appeal, especially since service and return of same are the requirements of the law which bring the appellee under the jurisdiction of the Court. “3. And also because the neglect of the appellant to have the said notice of appeal issued, served and returned is fatal and incurable according to the mandatory dictates of the statutes.” To this motion, appellant filed objections comprising five counts which we are taking the privilege of quoting in this opinion because we desire to make a thorough review of all of the issues raised before we proceed to pass upon their legal import, although we have not been able to make any legal appraisal of the merits involved in these objections. Here are the objections, word for word : “1. Because appellant says and submits that the issue raised and contained in Counts `I’ and t 2 1 of said motion does not constitute sufficient cause and/or fall within the grounds for which an appeal must be dismissed, as contemplated by and premised in the codified laws of this Republic. “2. And also because appellant avers and submits for the consideration of this Honorable Court that, LIBERIAN LAW REPORTS 255 although he acknowledges the fact that the notice of appeal was late served on appellee, yet such defect does not constitute and/or furnish sufficient grounds for the dismissal of the appeal. Appellant further maintains that, although the aforesaid notice of appeal was late served and returned, appellee acknowledged said service, thereby submitting to the jurisdiction of this Honorable Court. Thus, after acquiring jurisdiction over him, the Court is competent to decide upon its jurisdiction, especially so since it already has jurisdiction over the cause. And also because appellant says that, according to the several rulings of this Honorable Court, it is the service and return of the notice of appeal that confers jurisdiction upon the Court, and not otherwise, especially so since the instant appeal is one arising out of law and not equity. For, it is stated, equity is to law what the helicopter is to the conventional airplane. Equity can travel in any direction to achieve its objective and truth, when it is found unapproachable to forMalistic law. And on that terrain of ascertained fact, equity surveys the whole situation and grants the relief which justice and good conscience dictates. Further resisting the motion, appellant respectfully avers that this motion as filed by the appellee is not to receive the judicial and equitable consideration of this Honorable Court because it is legally defective and incurably bad for failure to close each and every count with the phrase : ‘All of which the appellee is ready to prove,’ as is mandatorily required by law and practice in vogue in this jurisdiction. And also because appellant denies the validity of the law assumed and relied upon, and all and singular the allegations of fact which are contained in 256 LIBERIAN LAW REPORTS the motion and not made a subject of special traverse in this resistance.” Those are the grounds of the resistance to the motion to dismiss the appeal, in Count i of which the appellant alleges the insufficiency of the motion to warrant the dismissal of the appeal. In Count 2, the appellant acknowledges that the notice of completion of the appeal was issued, served and returned after the time provided by law for the same to be done ; yet he avers that, although that is the case, the appellee submitted himself to the jurisdiction of the Court and could not legally raise the issue. Count 3 presents a confused statement. ‘Whereas appellant admits that it is only the service and return of the notice of the completion of the appeal which gives this Court jurisdiction, still he claims to recover under equity when this is a case at law. In Count 4, the appellant attacks the sufficiency of the motion on the ground that it failed to include the clause : “All of which appellant is ready to prove.” The issues thus raised by the appellant’s counsel appear to be so inconsistent with law, and with reason, which is the soul of the law, that we have not been able to give them any classification other than that they are a conglomeration of meaningless words without any legal importance. The law is emphatic. Our statutes require an appeal taken before this Court to be prosecuted and completed within 6o days from the day of final judgment, and if within that time the notice of the completion of the appeal is not issued, served and returned, the appeal is subject to dismissal. Appellant’s argument that, although the notice was served and returned late, yet because appellee acknowledges same, this Court had jurisdiction over the subject matter, is a very strange and unfounded interpretation of the statutes in that respect, and cannot be countenanced. Therefore, it is our opinion that appellant’s resistance is not sufficient in law. However, we will pros LIBERIAN LAW REPORTS 257 ceed to inspect the notice of completion of appeal before we undertake to arrive at a conclusion. An inspection of the aforesaid notice of completion of appeal shows that it was issued, served and returned 118 days after exceptions had been taken to the judgment of the court below–quite 58 days in excess of the time provided by law–just the same period of time in which the appeal bond was filed in the office of the clerk. Hence, there can be no reconciliation in law with the distorted grounds of the resistance, although this Court’s time was lengthily wearied by appellant’s counsel on his grounds of argument. The Civil Procedure Law provides as follows: It . . . Such bond shall be approved by the trial judge and filed with the Clerk of the Court within sixty days after the rendition of judgment. “Upon approval and filing of the bond the Clerk shall forthwith issue a notice to the appellee informing him that the appeal is taken and to what term of court and directing the appellee to appear and defend the same. The appeal shall thereupon be complete.” 1956 Code, tit. 6, � 1013. “Failure to file an appeal bond within the specified time, or filing of an insufficient bond shall be grounds for dismissal of an appeal.” 1956 Code, tit. 6, � 1014. “An appeal from a court of record may, upon motion properly taken, be dismissed for any of the following reasons: “(d) Negligent failure to have notice served on the appellee.” 1956 Code, tit. 6, � 1020. In the instant case, the notice of appeal was issued and served; but this was done after the time provided by the statute, and therefore has no legal effect. We have referred to the law applicable in the premises, 258 LIBERIAN LAW REPORTS and we have taken recourse to the records for our satisfaction as to the grounds of the motion to dismiss; and we are of the opinion that the appellant has neglected to prosecute his appeal according to law. The motion is therefore granted, and the appeal is dismissed with costs against the appellant. The judgment of the court below is hereby ordered enforced. And it is so ordered. Appeal dismissed.