ALHAJI SAIBU WAGGAY, Plaintiff-In-Error, v. HIS HONOUR JAMES KENNEDY BELLEH, Assigned Circuit Judge presiding over the June Term of the Sixth Judicial Circuit, and HAFEZ M. JAWHARY, Defendants-In-Error.

INFORMATION PROCEEDINGS

Heard: November 27, 1985. Decided: December 18, l985.

1. A court has no legal authority to insist upon the hearing of an action which has been withdrawn by the plaintiff; nor is a trial judge clothed with the legal authority to bar a party-plaintiff from withdrawing his action, either with or without reservation.
2. In withdrawing an action all that is required of a plaintiff is that he pays the costs of the opposite party, if he decides to re-file. In such a case, the court may only dismiss the second action if the accrued costs are not paid or if the action is withdrawn more than once.
3. Under the Civil Procedure Law, Rev. Code 1:11.6(3), discontinuance may not be granted after the case has been submitted to the court or jury for a determination of the facts, except upon the stipulation of all of the parties.
4. It is only when a case has been submitted to the court or jury to determine the facts that it cannot be discontinued or withdrawn without the stipulation of the parties thereto.
5. Under the laws relating to pleadings, a party must deny those averments of an adverse party which are known or believed by him to be untrue, and admit those which are true. Thus, averments to which a responsive pleading is required are deemed admitted when not denied in the responsive pleading.
6. When a party-defendant admits to allegations contained in a complaint, the need to take evidence on the points so admitted is rendered non-existent, and a court does not commit error in not taking evidence on the admitted points.
7. The prime purpose of notifying the parties in litigation to be present at the rendition of final a judgment is for the losing party to note exception to the judgment and announce an appeal therefrom. Thus, where a party is absent, the court must appoint an attorney to take exception to the judgment and announce an appeal therefrom for such absent party, inform the absent counsel of record of the court’s action, and deliver the records to that counsel, in order for him to take advantage of his client’s right to an appeal.

8. Where the right of appeal of an absent party is protected and preserved by the court by noting exception to the judgment, the announcing of an appeal in his favor, and furnishing to him copies of the records in time, thereby affording him the opportunity to take advantage of his right to appeal, the purpose of the statute on notice is deemed to have been met and no harm is considered done to the absent party.
9. Where exception has been noted for an absent party and an appeal announced from the judgment, the losing party should proceed by appeal which is available to him, instead of proceeding by error.
10. Where a judge renders final judgment a day earlier than scheduled in order to be within term time, his action will not be considered an error if it does no harm to the losing party and his right of appeal is protected and preserved by the court.
11. The non-payment of accrued costs by a plaintiff-in-error is ground for denial of his petition for the remedial writ or error. It is therefore incumbent upon a plaintiff-in-error to pay the accrued costs in keeping with the orders of the Justice in Chambers who granted the hearing of the special proceedings.
12. When the Justice in Chambers orders the payment of accrued costs as a condition for issuance of the writ of error, the fact that the clerk of court issued the writ without payment of such costs by the plaintiff-in-error, and that the issuance may be viewed as an act of an officer of the court, cannot serve to the benefit of the plaintiff-in-error who, by his own negligence, failed to pay the required accrued costs.
13. A petition for a remedial writ is a special proceeding addressed to the sound discretion of the Justice in Chambers, in whose power the issuance of the writ resides exclusively.
14. A petitioner or his counsel must first obtain the written orders of the Justice directing the filing of the petition for error and issuance of the alternative writ or citation before proceeding to the clerk of court to file the petition.

Plaintiff-in-error/informant filed a bill of information and a petition for a writ of error, all growing out of the proceedings in the trial court. In the information, he contended that the trial judge had erred in denying the co-respondent request to withdraw his initial action of ejectment and to thereafter file a different action for cancellation after the Supreme Court had send a mandate to the lower court resume jurisdiction of the first action and to conduct a new trial beginning with the disposition of the issues of law. The plaintiff-in-error/informant asserted that in permitting this refiling, the trial court had violated the mandate of the Supreme Court. In the error proceeding, he contended that the co-respondent judge had erred in hearing the issues of law in the absence of plaintiff-in-error or his counsel, and in rendering a decree in favor of the co-respondent without hearing any evidence, and to render such decree one day before the scheduled date, in the absence of plaintiff-in-error or his counsel. These acts, the plaintiff-in-error said, denied him of his day in court and deprived him of the opportunity to take exception to the judgment and announce an appeal therefrom.

The Justice in Chambers granted the petition for error in spite of the failure of the plaintiff-in-error to pay the accrued costs as required by the statute, but forwarded the information to the full Bench for disposition.
The Court consolidated the two proceedings and ruled in both proceedings against the plaintiff-in-error.
With regard to the contention that the trial judge had violated the mandate of the Supreme Court in permitting the co-respondent to withdraw and refile and different action after the Supreme Court had send a mandate commanding the judge to try the first action anew, beginning with the disposition of the law issues, the Court held that the trial judge did not err or violate the Court’s mandate since the withdrawal of the ejectment action and the filing of the cancellation proceedings had occurred before the original case had been called for disposition of the law issues. The Court noted that the statute vests in a complaining party the right to withdraw his action if he does so before the submission of the case to the court or the jury for determination of the facts. Since the issues of law had not been entertained or disposed of, it said, the case had therefore not been submitted to the court or the jury. The Court opined that the plaintiff could at that stage withdraw his action, with or without reservation. It noted further that the statute did not require the agreement of the parties under such circumstances before the withdrawal could be made. All that was required of the plaintiff, it said, was the payment of accrued costs if the plaintiff intended to refile. The Court observed that its mandate had not been violated by the trial court judge because once the plaintiff had fulfilled the requirements of the statute and withdrawn the ejectment action, there remained nothing before the trial court to be disposed of. The trial court, it said, had no legal authority to insist upon hearing an action which had already been withdrawn or to bar the plaintiff from withdrawing said action.

The Court, addressing the contention that the trial judge had erred in entertaining hearing on the laws issues in the absence of the plaintiff-in-error or his legal counsel, held that the judge had the authority, under Rule 28 of the Circuit Court Rules, to entertain disposition of the law issues in the absence of the plaintiff-in-error who had been duly notified of the hearing, but who along with his counsel had failed to appear.
In addition, the Court also rejected the contention of the plaintiff-in-error that he did not have his day in court because he was not served with a notice of assignment for his appearance to take the final judgment. It held that while the purpose of notifying the parties to be present at the rendition of a final judgment was to have the losing party note exception to the judgment and announce an appeal therefrom, that purpose had been met when the trial judge, upon entering the decree, noted exception thereto for the plaintiff-in-error, announced an appeal therefrom in his behalf, and had the records delivered to him on time to ensure his exercise of the right of appeal. Under such circumstances, the Court said, the plaintiff-in-error cannot complain of having been deprived of an opportunity to appeal from the judgment, especially as he had not been prejudiced thereby and had suffered no harm. The plaintiff-in-error should have proceeded to complete the appeal process which was available to him, rather than move by error, it said.
Regarding the contention that the trial court had erred in rendering judgment one day before the assigned date, the Court held that the reason given for the trial judge’s action (i.e. to be within term time) was tangible, especially as the plaintiff-in-error had not suffered harm as a result thereof and his right of appeal had been protected and preserved by the court.
The Court also opined that the trial judge did not err in entering judgment without first taking evidence since the plaintiff-in-error had admitted the allegations contained in the complaint or had failed to deny the same. The Court noted that where an admission is made by a defendant, or where there is a failure to deny, which is deemed as an admission, the necessity for the trial court to take evidence does not exist and no error is made in not taking such evidence.

Lastly, the Court addressed the issue of the failure of the plaintiff-in-error to pay the accrued costs as required by statute and as was mandated by the Justice who ordered the issuance of the alternative writ of error. The Court observed that as the plaintiff-in-error had failed to pay the accrued costs, the petition was dismissible. The Court rejected the contention of the plaintiff-in-error that even though the Chambers Justice had ordered the payment of such costs as a condition for the issuance of the writ, the issuance of the writ by the clerk without the payment of the required costs should be regarded as an official act for which plaintiff-in-error should not be penalized. The Court noted that the requirement was mandatory, that the failure to make such payment was ground for dismissal of the petition, and that the plaintiff-in-error could not excuse his negligence in not paying the accrued costs because of the action of the clerk of court. It opined that the Justice in Chambers had erred in granting the writ in the face of this deficiency by the plaintiff-in-error. The Court therefore reversed the ruling of the Justice in Chambers and accordingly denied the petition.

Roger K. Martin and Robert G. W. Azango appeared for the appellants/defendants-in-error/respondents. Joseph Kennedy and Joseph Williamson appeared for the appellee/plaintiff-in-error/informant.

MR. JUSTICE SMITH delivered the opinion of the Court.

The appellee, Alhaji Saibu Waggay, plaintiff-in-error in these error proceedings, is also the informant in a bill of information filed in the Chambers of this Court against the respondents. The bill was forwarded to the full bench by the Justice in Chambers. Because the parties and their respective counsel in both proceedings are the same, and also because the said proceedings relate to the same subject matter, we ordered consolidation of the two proceedings and the hearing of argument thereon. This opinion therefore deals with the matters as so consolidated.

The bill of information grew out of an action of ejectment instituted by co-respondent Hafez M. Jawhary against informant Alhaji Saibu Waggay in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County. That action was dismissed by the lower court on the issues of law. On appeal to the Supreme Court, the ruling dismissing the ejectment action was reversed and the case remanded to the court below to be heard anew, beginning with the disposition of law issues. Following the reading of the Supreme Court’s mandate, the plaintiff in the ejectment action, now co-respondent in these proceedings, withdrew the ejectment action with reservation to refile. He then filed a bill in equity for the cancellation of an agreement of conditional sale, a stipulation and an assignment of lease executed between himself and the informant.
Upon service of writ of summons in the cancellation proceedings, informant fled to the Supreme Court by this information, alleging substantially that it was contrary to law for the co-respondent to withdraw the ejectment action when the Supreme Court had mandated the court below to resume jurisdiction and hear and decide the ejectment action, beginning with the disposition of the law issues. He argued also that it was contrary to law and the mandate of the Supreme Court for the co-respondent judge to allow the withdrawal of the action of eject-ment which he had been mandated by the Supreme Court to hear and decide and to instead entertain the cancellation proceedings. The informant further contended that although the cancellation proceeding was filed less than fifteen days before the formal opening day of the June 1985 Term of the court to which the proceeding was venued, and the case was not on the docket of the June Term of court, yet the co-respondent judge hastily proceeded to hear and pass upon the issues of law in the cancellation proceedings in said the June Term.
In our opinion, the bill of information filed by the informant is un-meritorious. The co-respondent judge did not act contrary to law or in disobedience to the Supreme Court’s mandate; nor do we believe that he acted irregularly in the reading of the Supreme Court’s mandate to warrant this Court’s intervention by way of this bill of information.

According to the records, when the mandate of the Supreme Court was read, as is the normal procedure, the plaintiff in the ejectment action withdrew the said action. Therefore there was no action of ejectment pending any longer before the court. Under those circumstances, the court had no legal authority to insist upon the hearing of an action which had been withdrawn by the plaintiff; nor was the co-respondent judge clothed with the legal authority to bar a party plaintiff from withdrawing his action, either with or without reservation. All that is required of the plaintiff is that he pays the costs of the opposite party, if he desires to re-file, and the court may only dismiss the second action if the accrued costs were not paid or if the action was withdrawn more than once. In the instant case, all the acts done by the court below in the ejectment action had been nullified by the Supreme Court in its opinion delivered during the March 1985 Term, and by its mandate for a rehearing of the case beginning with the disposition of the issues of law. The Supreme Court order, in effect, placed the case at a stage where a withdrawal was possible and permissible before trial.
Counsel for informant argued that under section 11.6(3) of the Civil Procedure Law, Rev. Code 1, the withdrawal of the ejectment action should not have been permitted after submission and without stipulation of all parties. This section of the statute relied upon by the informant, reads as follows:

“Discontinuance after Submission. A discontinuance may not be granted after the case has been submitted to the court or jury to determine the facts except upon the stipulation of all parties.”
This provision of the statute, relied upon by informant’s counsel, is very clear and requires no further interpretation by the Court. It is only when a case has been submitted to the court or jury to determine the facts that it cannot be discontinued or withdrawn without the stipulation of all the parties thereto. In the instant case, the court below had not disposed of the issues of law raised in the pleadings, as ordered by the Supreme Court, when plaintiff withdrew his action, leaving thereby no case before the court to hear. The case was never therefore submitted to the court or jury for the determination of the facts when the action was withdrawn. Hence, it is our candid opinion that no irregularity was committed by the co-respondent judge to warrant the information; nor was the door closed on the party-plaintiff to withdraw his action before the law issues were disposed of. The bill of information must therefore be, and the same is hereby dismissed for being unmeritorious.

Coming now to the error proceeding, we observe that following the filing of the bill in equity for cancellation of the agreement of conditional sale, the stipulation and the assignment of lease by the co-defendant-in-error Hafez M. Jawhary, the appellant in the error proceedings, and the filing of returns thereto accordingly filed by the plaintiff-in-error, a notice of assignment for the disposition of the issues of law was issued by the court and acknowledged by counsel of record for both parties. The day and hour set by the court for the hearing was August 1, 1985, at ten o’clock in the morning. When the case was called for hearing, neither the counsel for the party-plaintiff-in-error nor the plaintiff-in-error himself appeared, even though they were notified and in fact acknowledged the assignment. The trial judge thereupon proceeded to entertain hearing on the law issues, relying on Rule 28 of the Circuit Court Rules which reads as follows:

“The clerk shall enter upon the ordinary docket of the court all matters filed in his office, and whenever the pleadings are concluded, and issues joined in any suit, he shall notify the judge thereof, who shall assign a day for passing upon the issues of law and hearing all cases not dismissed on the questions of law, whether or not the counsel previously notified are present . . . .”
The ruling on the law issues was then reserved until August 7, 1985. However, on August 6, 1985, one day before August 7, 1985, for reason explained by counsel for appellant to be “expiration of the judge’s term”, the trial judge, without any notice of assignment being issued and served for ruling, entered a decree cancelling the agreement of sale, the stipulation and the assignment of lease. The judge then noted exception to the decree and announced an appeal in favor of the plaintiff-in-error. The records and the decree were then passed on to counsel for plaintiff-in-error for their information. On the 8th of August, that is to say two days after the court’s decree was entered, the plaintiff-in-error filed the error proceedings, proferted thereto a copy of the decree and the records. These (the decree and the records) were clear evidence that the plaintiff-in-error was notified of the exception noted to the decree and of the announcement of an appeal, taken in his favor by the trial judge.

In his petition, the plaintiff-in-error alleged that: (1) he was not allowed his day in court, in that no notice of assignment was served on him to notify him of the day the court intended to enter its decree, so as to have afforded him an opportunity to be present, to except to the decree, and to announce an appeal therefrom. Moreover, he says, the trial judge did not appoint a lawyer to take the ruling of the court for the purpose of noting exception and announcing an appeal; (2) that despite the issuance and service in the information proceedings of an alternative writ from the Chambers Justice to the trial judge to stay all further proceedings, the co-defendant-in-error judge still proceeded to hear and determine the cancellation proceeding; (3) that the trial court entered a ruling before the day on which the ruling was scheduled to be given, and (4) that the trial court entered a decree without taking evidence.
The Chambers Justice heard the error proceeding and granted the petition, holding that the co-defendant-in-error judge, after ruling on the law issues, proceeded thereafter to render a final judgment without taking any evidence, without issuing a notice of assignment, and appointing an attorney to take the ruling on behalf of counsel of record for the purpose of excepting to the ruling and announcing an appeal. The learned Justice also held that his order for the payment of accrued costs was directed to the Clerk of Court, and that since he did not require the plaintiff-in-error to pay accrued costs except as contained in his orders to the clerk, plaintiff-in-error could not be prejudiced thereby. It is from this ruling that the defendants-in-error have appealed to the Bench en banc for review of the ruling of the Chambers Justice.
Counsel for the parties strongly argued before this Bench the points of their contention, as summarized herein above. We shall now address ourselves to the issues advanced, commencing first with the question of the trial judge entering judgment without first taking evidence.
For the benefit of this opinion, we quote word for word the four counts of the petition for cancellation:

“1. That petitioner is the owner of Holiday Inn Hotel (Liberia) Inc. situated and lying at No. 100 Carey Street, and following a period of negotiations, on June 30, 1980, petitioner and respondent executed three different instruments forming a conditional contract of sale, namely: (1) a bill of sale for the sale of Holiday Inn Hotel (Liberia), Inc., dated June 30, 1980, probated on the 18th day of August, A. D. 1980, and registered according to law in the office of the registrar of deeds for Montserrado County; (2) a stipulation of under-standing as to the manner in which the purchase price shall be paid and remedy adopted therein in the event of default, dated June 30, 1980, probated and registered according to law on the 18th day of August, A. D. 1980, and (3) an assignment of lease agreement for the parcel of land where petitioner built and furnished the said Holiday Inn Hotel (Liberia) Inc., dated June 30, 1980, probated on the 18th day of August, A.D. 1980, registered according to law in the office of the registrar of deeds for Montserrado County, copies of which are herein made proffered and marked respectively P/l, P/2 and P/3 to form constituent parts of this petition.

2. 2. That according to clause one (1) of the bill of sale mentioned above, P/1 herein, the purchase price was agreed upon to be Seven Hundred Thousand Dollars ($700,000.00) and the payment thereof was to be made between the period June 30, 1980 and December 31, 1982, in accordance with the various installment payments stipulated in the stipulation of understanding, P/2 herein, and following some partial payments in keeping with clause three of the said stipulation of understanding, the respondent herein defaulted, leaving an unpaid balance of $355,000.00 plus $17,212.21 which represents hotel receivables agreed upon by respondent to be collected and paid to petitioner but which was collected and not paid to petitioner, total balance $372,212.21.

3. Petitioner further complains against the respondent and says that on July 6, 1982, respondent was notified by petitioner through his counsel of said respondent’s default, in a letter copy of which is hereto attached and marked P/4 to form a cogent part of this petition in which letter the respondent was requested to make full payment of the amount in default at the time, but to no avail; further on January 11, 1983, petitioner again called the attention of the respondent to said respondent’s default in the amount herein above stated in a letter copy of which is hereto attached and marked P/5 to also form a part of this petition, but that the respondent has so far failed to pay the amount in default even though petitioner had declared in the letters of notice his intention to apply clause five of the stipulation of understanding which grants petitioner, upon default, the right to consider the above three instruments as cancelled null and void as well as the right to re-enter end repossess.
4. Petitioner avers and says that from the dates of the above notices to respondent up to the filing of this petition, the respondent has failed, refused and neglected to pay the unpaid balance of the purchase price as stated both in the bill of sale and the stipulation of under-standing hereto attached and has thus deliberately breached the conditional contract of sale consisting of the above three instruments between petitioner and respondent.”

Clause five (5) of the stipulation, which is alleged in count three of the petition to have given rise to the cancellation proceedings, reads as follows:

“It is mutually also understood by the parties that in the event of failure to comply with the terms and conditions herein stated on the part of the party of the second part, the party of the first part, the seller, shall have no alternative but to consider the bill of sale and the agreement of lease as cancelled and void and to repossess the said building and damages with or without any court proceeding and any amount incurred during the said repossession same shall be borne by the party of the second part, the buyer.”

To these allegations, the plaintiff-in-error filed a seven count returns. In count one thereof, he claimed ownership of the subject property by virtue of the same agreement of sale proffered to the petition and sought to be cancelled for breach of contract. In count four of said returns, plaintiff-in-error admitted paying $150,000.00 to co-defendant-in-error Hafez M. Jawhary against the value of the hotel, which he stated therein to be $700,000.00. However, he neglected and failed to traverse and deny counts 3 and 4 of the petition which alleged default and breach on plaintiff-in-error’s part, and which gave rise to the institution of the cancellation proceedings.
Pleadings, as defined by Black’s Law Dictionary, is the process performed by parties to a suit or action, in alternately presenting written statements of their contentions, each responsive to that which precedes, and each serving to narrow the field of controversy, until there evolves a single point, affirmed on one side and denied on the other, called the “issue”, upon which they then go to trial. See BLACK’S LAW DICTIONARY 1311 (4th ed.), Pleadings. Under the law of pleadings, a party shall deny those averments of an adverse party which are known or believed by him to be untrue and admit those that are true, but averments in a pleading to which a responsive pleading is required are admitted when not denied in the responsive pleading. Civil Procedure Law, Rev. Code 1: 9.8(l) and (3).
In our opinion, the admission on part of the plaintiff-in-error in count four of his returns that there was a contract of sale, that he had defaulted in paying the full purchase price of the hotel, in the amount of $700,000.00 as stipulated, and that he had paid only $150,000.00 without providing any excuse for the default, made it unnecessary for the court to take evidence. The only evidence needed in the case was to establish the existence of a conditional sale agreement and a breach thereof as a result of a default in payment. But these facts were admitted by the plaintiff-in-error in his returns. Hence, the necessity to take evidence did not exist. The contention, therefore, that no evidence was taken before the decree was entered is overruled.

The next issue for our determination is the entry of a final decree by the co-defendant-in-error judge without service of a notice of assignment on the plaintiff-in-error to afford him the opportunity to be present for the ruling, note exception thereto, and announce an appeal therefrom. The plaintiff-in-error also took issue with the judge’s failure to appoint an attorney to take the ruling for the absent counsel of record for the purpose of noting exception to and announcing an appeal from the final decree. This practice, plaintiff-in-error says, is hoary with age in our courts of justice and is provided for by the statute relied upon by our distinguished colleague in Chambers. Let us see what is the purpose of notifying the parties in litigation to be present at the rendition of final judgment.
The prime purpose for the notice referred to is for the losing party to note exception to the judgment and announce an appeal therefrom. Thus, in the absence of such party, the court is man-dated to appoint an attorney to do the same (i.e. take exception to the judgment and announce an appeal), and to inform the absent counsel of record of the action and deliver the records to him so that he may take advantage of his rights to an appeal. We are of the opinion, however, that where the rights of appeal of the absent party is protected and preserved by the noting of exception to the judgment, the announcing of an appeal in his favor, and the furnishing to him of the records in time, and thereby affording him the opportunity to take advantage of his rights of appeal as was done by the co-defendant-in-error judge in this case, the purpose of the statute had been fully met and no harm was done to the plaintiff-in-error. Plaintiff-in-error should therefore have proceeded by appeal which was made available to him instead of proceeding by error. The contention of not sending out notice of assignment and appointing an attorney under the circumstances is therefore not sustained.

The third issue is that the co-defendant-in-error judge rendered final judgment before the 7th day of August, 1985, the day he had assigned on record for the entry of said final judgment. During arguments, the Court sought to know why final judgment was rendered on the 6th of August instead of the 7th instant, the day scheduled on the minutes of court for the rendition of such judgment. In response, counsel for the appellant explained, without any denial on the part of counsel for the appellee, that August 6, 1985, was the last day of the judge’s term to render judgment. In our opinion, the reason given for the judge’s position in rendering judgment before the 7th of August, 1985, is tangible, especially as no harm was done to the plaintiff-in-error, and his right of appeal was protected and preserved by the court.
The last point of contention is the non-payment of accrued costs on the part of the plaintiff-in-error. During the argument, counsel for the plaintiff-in-error contended that the accrued costs was not paid because the Justice presiding in Chambers did not require the plaintiff-in-error to pay accrued costs; that this was a duty imposed on the Justice to do; and that although in his orders to the Clerk the Justice directed the issuance of the alternative writ of error upon payment of accrued costs by the plaintiff-in-error, yet the Clerk had issued the writ without requiring the payment by the plaintiff-in-error of the accrued costs. This act on the part of the clerk, he argued, cannot prejudice the interest of the plaintiff-in-error. Counsel for plaintiff-in-error cited to the Court as reliance the case Leigh-Sherman v. Pupo and The Liberian Bank For Development and Investment, [1984] LRSC 40; 32 LLR 300 (1984)

This argument of counsel for appellee/plaintiff-in-error is untenable. The statute makes non-payment of accrued costs by a plaintiff-in-error a ground for denial of his petition. In the Leigh-Sherman case, the order of the Justice in Chambers to the Clerk did not contain a clause directing the payment of accrued costs. In fact, the accrued costs in that case was paid by the plaintiff-in-error after the issuance of the writ and before returns thereto were filed by the defendants-in-error. The pertinent issue in that case was whether it was mandatory for the Justice to require the payment of accrued costs. The Court said that it was. In the instant case, however, the Chambers Justice directed the payment of accrued costs in the written orders directing the issuance of the alternative writ. It was therefore incumbent upon the plaintiff-in-error to pay the accrued costs in keeping with the orders he had obtained from the Justice presiding in Chambers granting the hearing of the special proceeding. The argument therefore that although the Chambers Justice had directed the payment of the accrued costs as a precondition to the issuance of the writ, but that because the issuance of the writ by the Clerk without the payment of such costs was an act of an officer of the Court, it should not prejudice the plaintiff-in-error, is a mere technicality intended by the plaintiff-in-error/appellee to benefit from his own negligence.
A petition for a remedial writ is a special proceeding addressed to the sound discretion of the Justice presiding in Chambers of this Court, in whose power the issuance of the writ resides exclusively. Judiciary Law, Rev. Code 17:2.9. Thus, petitioner or his counsel must first obtain the written orders of the Justice directing the filing of the petition and issuance of the alternative writ or citation. In most cases, lawyers irregularly proceed directly to the clerk’s office to file their petitions without first obtaining the written orders of the Justice presiding in Chambers simply to shun the Justice from requiring them to pay accrued costs in the proper case to avoid complying with the written orders of the Justice directed to the clerk.
In our opinion therefore, it was sufficient when the Justice presiding in Chambers directed the payment of accrued costs by the plaintiff-in-error in his written orders to the Clerk, and it was equally incumbent upon the plaintiff-in-error to have seen to it that the proceedings were properly brought under the jurisdiction of the court for hearing. Not having paid the accrued costs as ordered by the Justice presiding in Chambers, plaintiff-in-error’s petition must therefore crumble.
In view of the all that we have narrated herein above and the law controlling, it is our candid opinion that the ruling of the Justice in Chambers be, and the same is hereby reversed, with costs against the plaintiff-in-error/appellee. And it is hereby so ordered.

Information and petition for error denied.