DAVIES WEAR alias TEAH (MATTHEW W. DAVIES), Appellant, v. KPAH-LEANDH-JAIYAWA, Appellee.

APPEAL FROM THE MONTHLY AND PROBATE COURT OF MONTSERRADO COUNTY.

Argued April 25, October 11, 12, 1944. Decided November 17, 1944.

He who submits to the jurisdiction of the court under a given name is estopped thereafter from raising the plea of misnomer.

Plantiff, now appellee, sued defendant, now appellant, in the Court of the Justice of the Peace, Montserrado County, for the return of two goats left in plaintiff’s possession for safekeeping. Upon judgment for defendant, plaintiff appealed to the Monthly and Probate Court, Montserrado County, wherein, upon the nonappearance of the defendant, judgment was rendered in favor of plaintiff. A motion for rehearing in the said court was denied. On appeal to this Court, judgment affirmed as modified.

C. Abayomi Cassell for appellant. B. G. Freeman for appellee.

MR. JUSTICE DAVID delivered the opinion of the Court.

As the result of what appears to be a breach of a verbal contract arrived at between the appellant, Davies Wear alias Teah, and Kpah-Leandh-Jaiyawa, appellee, a woman of the Kru tribe, this case has traveled to this Court for final disposition.

According to the records filed in this Court, the action had its origin in the court of one of the justices of the peace for Montserrado County, Frank N. Williams of the Bassa community in Monrovia.

The records reveal that the appellee alleges that she left in possession of appellant for safekeeping two goats which the appellant had agreed to keep until they were required. When a demand was subsequently made by appellee for the return of the two goats, appellant was not in a position to comply with the request. Appellee took recourse to law, and a suit of detinue was brought in the court of the justice of peace referred to above. The defendant in the court below, now appellant, duly appeared before the court of the justice of the peace and answered to the name by which he had been sued, namely, Teah, without any objections. After the trial judgment was rendered against plaintiff, now appellee, upon the ground that plaintiff had sued for two goats when the defendant had already produced one of them. An appeal was taken from this judgment by the plaintiff, now appellee, to the Monthly and Probate Court for Montserrado County and, when the case was called for trial, appellant neglected to appear. An imperfect judgment was first given and, after evidence was adduced, same was perfected, final judgment rendered, execution prayed for, and granted. It was not until final judgment had been issued that the defendant, now appellant, wrote the judge to the effect that he did not have notice of the assignment of the case. It must, however, be noted that from the certified records filed in this Court, appellant admits that his counsel was duly served with the notice of assignment of the case but had neglected to appear. Counsel for appellant thereafter appeared in court and made a motion for a rehearing of the case on the ground that appellant was known by a more popular name than that by which he was sued, and that it was because of this that the ministerial officer was unable to duly notify him of the assignment of the case. The Commissioner of Probate did not fail to investigate the allegation and it was clearly established in said investigation that the appellant had been given notice of the assignment and, after hearing the arguments from both parties on the motion for rehearing, same was denied.

It is a well-established principle of law that he who submits to the jurisdiction of the court under a given name is estopped from raising the plea of misnomer thereafter, and he who pleads a disclaimer is bound to give the correct name.

Had appellant in the first instance, upon being summoned, set forth his defense by appearing before the trial court and denying or disclaiming the appellation in the writ by which appellee sought to bring appellant into court, and had appellant raised a plea of misnomer as he now seeks to do, his plea would be entitled to some merit. However, having permitted the matter to travel through a regular course of trial in the court of the justice of the peace wherein a judgment had been obtained against appellant under the name of Teah, we are of the opinion that appellant is estopped from setting up a plea of misnomer at this stage. Kruger v. Johns, [1913] LRSC 2; 2 L.L.R. 89, 1 Lib. Semi-Ann. Ser. 4, 5 (1913). Bouvier supports this position :

“[Estoppel is] the preclusion of a person from asserting a fact, by previous conduct inconsistent therewith, on his own part or the part of those under whom he claims, or by an adjudication upon his rights which he cannot be allowed to call in question.

“A preclusion, in law, which prevents a man from alleging or denying a fact, in consequence of his own previous act, allegation, or denial of a contrary tenor.” Bouvier, Law Dictionary Estoppel 1078 (Rawle’s 3d rev. 1914).

We quote another eminent authority on this subject:

“It makes no difference in the operation of this rule, whether the thing admitted was true or false; it being the fact that it has been acted upon that renders it conclusive.” 1 Greenleaf on Evidence Estoppels § 208, at 342 (1899).

The position of the judge of the Monthly and Probate Court in refusing to sustain the motion for a new trial or rehearing of the case after judgment had been rendered and an execution issued must therefore be sustained by this Court.

There are two additional questions which have claimed our attention :

(1) Was there a verbal agreement between appellant and appellee and, if so, did appellant agree to receive two goats for safe-keeping? and

(2) Were the goats returned to the owner upon demand?

From the evidence adduced at the trial it has been definitely established that the appellant did agree to take into his custody two goats for safekeeping to be delivered upon demand, and in our opinion the covenant to return the two goats when needed was contemporaneous with his acceptance of them for safekeeping.

It is further revealed by the evidence that two goats were received by the appellant, one of which he sent to Kakata; that upon demand appellant offered to return only one goat; and that his failure to return the other led to the institution of this suit.

After carefully considering the certified records submitted to us in the case and the briefs of counsel for both parties, the Court has arrived at the following conclusions : (1)The case was properly conducted by His Honor the Commissioner of Probate; (2) The judgment of said court should therefore be affirmed with the modification that the appellant return the two goats or pay their value at six dollars each to the appellee; and (3) The appellant shall pay all costs of these proceedings; and it is hereby so ordered.

Affirmed as modified.