BUCHANAN UREY, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

MOTION TO DISMISS APPEAL.

Argued January 15, 1936. Decided January 31, 1936.

1. An exception is a notice that the party taking same preserves for the consideration of the appellate court a ruling deemed erroneous.

2. In order to lay a legal foundation upon which a bill of exceptions can be predicated based upon an erroneous verdict, the appellant must except to the verdict of the petit jury when it is presented to the trial judge.

3. In so far as the “amount of controversy” determines the jurisdiction of a trial court, it is the claim as presented, not the claim as decided or allowed, which determines the said jurisdiction.

Appellant appeals to this Court from a conviction of malicious mischief in the Circuit Court of the First Judicial Circuit, Montserrado County. Appellee moves to dismiss the appeal. Motion granted.

D. C. Caranda for appellant. The Attorney General and R. F. D. Smallwood, County Attorney for Montserrado County, for appellee.

MR. JUSTICE DOSSEN delivered the opinion of the Court.

At the February term of the Circuit Court of the First Judicial Circuit, Montserrado County, Republic of Liberia, one Buchanan Urey was indicted for the crime of malicious mischief, to which he pleaded not guilty; and on the 7th day of March, 1935 was sentenced “to pay punitive damages of ($is.00) fifteen dollars to the private prosecutor, and to pay a fine of ($ioo.00) one hundred dollars to the Republic of Liberia forthwith, or be imprisoned in the County Jail for such a period as would satisfy the sentence, both as to fine and punitive damages.” Appellant, defendant below, not being satisfied with the final judgment rendered against him as aforesaid, appealed to the Honorable Supreme Court of Liberia, upon a bill of exceptions. At the call of the case for hearing, appellee submitted a motion to this Court, praying in the first count thereof that the appeal should be dismissed for want of jurisdiction, to wit:

“1. Because at the rendition of verdict by the Petty Jury in the court below, defendant now appellant took no exception to the verdict rendered against him, but on the contrary accepted the verdict of the Petty Jury, asked that the verdict be recorded and the Petty Jury be discharged with thanks to the court, which act of the defendant in the court below estopped him from taking an appeal.”

The ground set forth and contained in count one of appellee’s motion to dismiss, being so pertinent and supported by law, is sufficient of itself to topple appellant’s appeal without considering the other points therein contained.

Our own statute provides that:

“On the rendition of a verdict, if any party excepts thereto on the ground that it is contrary to the law or the evidence, or is against the weight of evidence, he must before the jury is discharged enter his exception on the minutes of the Clerk of the Court. Before doing so he may cause the Clerk to ask each juror as to whether or not such verdict is his own, and he shall give notice of motion for a new trial.” i Rev. Stat. § 396.

In the case Phillips v. Republic, decided by this Court at its November term, 1934, this Court said inter alia:

“As to count two of said motion, appellant having neglected to except to the trial judge’s ruling on said count and to have said exception noted in the records, waived his right under the law for this Court to pass on said count.” 4 L.L.R. 14.

We then cited with approval the following from the Encyclopedia of Pleading and Practice, volume 8:

“As a general rule, objections which were not taken upon the trial or in the course of proceedings below, cannot be urged on appeal or error.” p. 157, § 2.

“The objection must state the grounds thereof, and point out specifically the errors complained of, in order that an opportunity may be given to correct them; if not sufficiently specific it will not afterwards avail the party raising it.” p. 163, § 5.

“An exception, as the term is ordinarily used, is an objection taken to the decision of the trial court upon a matter of law, and is a notice that the party taking it preserves for the consideration of the appellate court a ruling deemed erroneous. Its office is altogether different from that of an objection. While an objection always precedes a ruling, the exception immediately follows it. It is the second step of the proceedings taken to obtain a review of error committed by the trial court, and is the method by which an objection is saved. In the absence of an exception an objection is lost, no matter what its intrinsic merits are. Unlike an objection, an exception does not present the specific grounds on which it is based, except where objections are unnecessary, as in the case of instructions, where exceptions take the place of objections.” p. 157, § 1.

In order, therefore, to lay a legal foundation upon which a bill of exceptions can be predicated, based upon an erroneous verdict, the appellant must except to the verdict of the petty jury of the trial court below when the same is presented to the trial judge, which gives notice to the opposite party that the party taking it preserves for the consideration of the appellate court a ruling which is erroneous.

By an inspection of the record filed in this case, we find that no exception was taken by the appellant, defendant below, when the verdict of the impanelled jury was presented and read in the trial court below; rather, said defendant thanked the jury for their verdict, and requested the trial judge to have same noted. The defendant having failed and neglected to except to said verdict at that time, is estopped from trying to take advantage of his own mistake. For in practice, it is required of every person to take advantage of his rights at the proper time, and neglecting to do so will be considered as a waiver. 3 B.L.D., “Waiver.”

Our own Supreme Court has said in the case Richards v. Coleman, decided during this present term of Court:

“The statute of Liberia governing the procedure in all cases after verdict of the petty jury is mandatory and ought to be strictly followed. This statute provides that: ‘The court may set aside the verdict or decision of the jury, and order a new trial, whenever it shall be proved that . . . the verdict shall be manifestly against the evidence, the law or the legal instructions of the court, or if the debt or damages found by the jury, be greatly too much or too little, when compared with the evidence in the cause.’ Liberian Statutes (Old Blue Book), ch. VII, p. 48, § 16.”

During the argument, Mr. Caranda for appellant, conceding the above, contended that the fifteen dollars’ punitive damages awarded by the jury had the effect of reducing the crime below the jurisdictional amount for the Circuit Court, and bringing it within the jurisdiction of the justice of the peace.

“While the subject of ‘Amount in Controversy’ is exceedingly extended in its applications and rich in illustrations, it is necessarily at the same time limited to the settlement of no very large number of legal principles. To enunciate these, so far as they may be clearly deducible from reported cases, and to set forth the local and statutory provisions as appearing therein, will be the purpose of the following article, the scope of which will be found to be practically coincident with and dependent almost wholly upon a consideration of the question of the amount in controversy as affecting the jurisdiction of courts, original and appellate.

“. . . It is the claim as presented, not the claim as decided or allowed, which primarily determines the question of jurisdiction in the trial or lower court, and hence constitutes therein the amount in controversy.” I Ency. of Pl. and Prac. 703.

The author in his notes and for the purpose of illustration makes brief references to the adjudicated cases following:

“In the leading case of Kanouse v. Martin, Is How. (U.S.) 198, Curtis, J., said : The words “matter in dispute” . . . do not refer to dispute in the country, or the intentions or expectations of the parties concerning them, but to the claim presented on the record to the legal consideration of the court.’

“And in Gordon v. Longest, i6 Pet. (U.S.) 97, Mc-Clean, J., said: ‘The damages claimed by the plaintiff in his writ gives the jurisdiction to the court whether it be an original suit in the circuit court or brought here on petition from a state court.’ ” Id., footnote 1.

Thus continues the author :

“The rule is almost without exception that the amount demanded by the plaintiff, and not the amount of his recovery, determines the question of the court’s jurisdiction when the suit is for unliquidated damages, irrespective of the character of the action, whether it be in contract or in tort.” Id., at 704.

“Actions ex delicto are from their very nature usually actions for the recovery of unliquidated and problematical damages ; hence the rule already enunciated, that it is the sum demanded and not the amount of recovery which determines the jurisdiction vel non of the trial court, is peculiarly applicable to them.” Id., at 705.

“Based upon the well-established principle that, jurisdiction having once attached, every presumption of law is in favor of its continuance, is the generally accepted doctrine that where a suit is commenced for an amount within the jurisdiction of a court, although that amount be reduced below the limited sum, nevertheless the jurisdiction to hear and determine the cause remains unaffected.” Id., at 708.

Appellee’s motion to dismiss said appeal being sound in law must receive the favorable consideration of this Court. Therefore, said motion should be sustained, the appeal dismissed, and the court below given permission to resume jurisdiction, and enforce the judgment ; and it is hereby so ordered.

Motion granted.

MR. CHIEF JUSTICE GRIMES being the private prosecutor before his elevation to the Bench did not take part in the consideration or decision of this case.