WILLIAM N. WITHERSPOON and the Reverend RICHARD P. GREENE, Curator of Intestate Estates, Sinoe County, Appellants, v. JAMES A. CLARKE, FRANCES E. CLARKE, and A. J. B. MANNING, Heirs of the Late WILLIS J. CLARKE, Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT, SINOE COUNTY. Argued October 27, 1960. Decided December 16, 1960. 1. It is the service of the notice of appeal which alone gives an appellate court jurisdiction over the appellees ; and such service is evidenced only by the official return of the ministerial officer. 2. When an appeal is announced to the Supreme Court from a judgment, a ruling or a decision, the appellant’s counsel, after performing all the statutorily prescribed requisites for completion of the appeal, is required to serve upon the appellee a copy of the notice of appeal, the original of which is required to have been issued by the clerk and served and returned by the ministerial officers. On appeal from a judgment denying admission of a deed to probate, motion to dismiss granted. Barclay and Witherspoon Law Firm for appellants. Beysolow and Cooper Law Firm for appellees. MR. CHIEF JUSTICE WILSON delivered the opinion of the Court.* Senator William J. Clarke, late of the City of Greenville, Sinoe County, died intestate. In harmony with the statutes the administration of his estate fell to the Curator of Intestate Estates, who was the Reverend Richard P. Greene. On July 24, 1939, upon application of said curator, an order for auction and public sale of Lots Numbers 34, � Mr. Justice Mitchell, having been of counsel for appellants, recused himself from the bearing and adjudication of this case. LIBERIAN LAW REPORTS 195 35o and 1043, situated in the City of Greenville, same being a part of the property of the said intestate, was issued by His Honor, J. A. Monger, now deceased, then Resident Judge of the Circuit Court of the Third Judicial Circuit, Sinoe County. The auction and public sale were authorized for the purpose of settling debts owed by said intestate at the time of his death. It was definitely stated in the said order of sale that same should be done within 20 days. In the execution of the aforesaid order the curator made several attempts to sell Lot Number 34 within the time authorized by the court, but was unsuccessful. The record reveals that, after this futile attempt to sell Lot Number 34, although there is no showing how much of the 20-day period had been expired, the curator applied to court for an extension of time, which was denied. If this denial of the application of the curator by the court was considered as unreasonable there is nothing in the record to so indicate. It is, however, alleged by the instant appellees that the property was eventually sold to cograntee William N. Witherspoon, one of the appellants before this Court, in May, 1941, one year and ten months after the order of sale was issued, and without a subsequent or extended order of sale. Upon the offer for probate of the curator’s deed transferring said Lot Number 34 to co-grantee William N. Witherspoon, in 1943, almost two years after its execution, objections were filed to its probation and registration by appellees. Upon the joinder of issue between the parties Judge Monger ruled the case to trial on the law and facts involved. At the May, 1958, term of said court, that is, on June 12, 1958, with His Honor, A. Lorenzo Weeks presiding by assignment, trial was commenced at the request of the appellants. On July 4, 1958, final judgment was rendered by said trial judge denying the admission of said 196 LIBERIAN LAW REPORTS deed into probate with costs against respondents, now appellants. Being dissatisfied with this final decree of court and other adverse rulings of the trial . judge, respondentsappellants noted exceptions and prayed an appeal to this Court for a review, which was granted. A bill of exceptions consisting of 29 counts was filed and forms the basis on which the review of this case must rest. Sundry are the law issues raised in the pleadings and rulings thereon made, as well as questions propounded to witnesses on the trial, to which exceptions were noted ; but upon the call of the case for hearing by this Court, appellees filed a motion to dismiss said appeal, which motion must serve as a supersedeas to our entering upon the basic action so as to determine whether or not the jurisdictional points thus raised in said motion are sound and sufficient in law to warrant refusal of this Court to enter upon a review of the issues raised in said case. Counts “1” and “2” of said motion allege : r. Because appellees say that, from a careful perusal of the record certified here, it does not appear that a valid legal notice was ever served on said appellees by the ministerial officer of the trial court and returned by said ministerial officer as is required to be done by law, rules, and practice of courts of this Republic. 2. And also because appellees say that the notice of appeal dated July 22, 1958, does not on its face show that the original of said document was served on the appellees and returned by the ministerial officer of the Circuit Court of the Third Judicial Circuit, Sinoe County, in keeping with Rule IV, part 4, of the Rules of this Honorable Court governing appeals, as will more fully appear from said notice of appeal, copy of which marked Exhibit ‘A’ is herewith filed to form a part of this notice to dismiss.” ” . LIBERIAN LAW REPORTS 197 Provided under Rule IV (4) of the Revised Rules of the Supreme Court (1959) is the following: “Notice–Whenever an appeal to the Supreme Court is announced from a judgment, ruling, or decision, counsel for the appealing party shall, after announcing appeal and performing all of the statutory acts incident to the completion of said appeal, and after taking all of the jurisdictional steps necessary within the time prescribed, serve a copy of the notice of appeal upon his adversary, the original of which must have been issued by the clerk and served and returned by the ministerial officer. Another copy which shall be accompanied by a certificate verified by oath, to the effect that he has properly supervised his appeal, shall then be filed in the office of the clerk of the Supreme Court and shall be included in the records. These acts on part of appealing counsel shall in no way affect the statutory duties of the clerk of the trial court in respect to notices of appeal.” Syllabus 2 and Syllabus 3 of Brownell v. Brownell, L.L.R. 76 (1936) reads as follows : “2. It is the service of the notice of appeal which alone gives the appellate court jurisdiction over the appellee. “3. The only legal evidence of such service is the official return of the proper ministerial officer.” But before entering upon the merits of this motion we must address ourselves to the resistance filed by appellants, which is jurisdictional in character. We quote for the sake of this opinion Counts “3,” “4,” and “5” of said resistance : “3. And also because appellants further say that the notice of appeal was actually issued, served and returned as the law directs, and was superintended by appellant William N. Witherspoon himself, and that its omission from the record sent up can only be considered an intentional act by the Probate Clerk of the Circuit Court of the Third Ju- 198 LIBERIAN LAW REPORTS dicial Circuit, Sinoe County, in an endeavor to defeat the case of appellants, since indeed the paper or document made profert by the appellees with their said motion has never been seen by Counsellor William N. Witherspoon. “4. And the appellants further say that the notice of appeal was actually issued, served and returned to the clerk’s office by the then Sheriff of Sinoe County, Mr. Charles Bassel, who is now dead. This act was superintended by Counsellor William N. Witherspoon himself, and consequently the omission from the record of the case sent forward by the clerk of the said court is probably due to some act of chicanery in an endeavor to defeat his appeal. “5. And also because appellants further say that the purported notice of appeal, copy of which was made profert by appellees with their said motion, is definitely not the notice of appeal which was issued, served and returned to the clerk’s office by the then sheriff who is now dead. Appellant Witherspoon who superintended the issuance, service and return of the real notice of appeal, has never heretofore seen said document which appellees now make profert.” A very strange coincidence emerged in this case at the time when Counsellor William N. Witherspoon, one of the appellants, was making a closing argument for and on behalf of the said appellants. During the course of his argument, he read a letter claimed to have been written by the Clerk of the Circuit Court of the Third Judicial Circuit, Sinoe County, and addressed to Mr. Chief Justice Wilson, in which he is represented as informing the Chief Justice that he was transmitting the record prepared in said case to the Supreme Court; that Counsellor Witherspoon, one of the appellants herein, and the one in whose favor said curator’s deed was executed, had left LIBERIAN LAW REPORTS 199 the country for foreign parts at the time of the completion of said record for transmission; that only counsel for appellees had the opportunity to inspect and supervise said record, which could not be done by the said Counsellor Witherspoon because he was out of the country; and that Curator R. P. Greene, one of appellants in this case, had informed the said clerk that he had instructions from Counselfor Witherspoon not to supervise said record, he not being a lawyer and therefore not having the ability or experience to inspect said record. The only impression that such a letter would seem intended to convey is that the said appellant did not have an opportunity to inspect said record before transmission to this Court, and that, therefore, the diminution and the chicanery claimed to have been practiced on appellants by the said clerk were possible. Not only has such a letter never been received by Mr. Chief Justice Wilson, but the improbability of such a letter ever having been written by the clerk is reflected in the fact that clerks of the subordinate courts, when transmitting records on appeal to the Supreme Court, do not address covering letters to the Chief Justice, but to the Clerk of the Supreme Court. It is also a fact that such a letter presents a very serious case of deception, since, that in all of the three counts of appellants’ resistance to said motion, reference is positively and definitely made to co-appellant William N. Witherspoon as having personally supervised the preparation of the record in this case before transmission to the Supreme Court. What, then, could have been the purpose of this letter which Counsellor Witherspoon in his argument read to this Court? Moreover, the said Counsellor Witherspoon made reference in his argument to certain parts of said letter which relates to his not being in Liberia to inspect said records before transmission, and that they were not inspected by his co-appellant, Curator Greene, on his advice; yet, al- 200 LIBERIAN LAW REPORTS most in the same breath, he informed this Court that he was made to pay the sum of $18o for his copy of said record by the clerk, and that it was on the strength of this completed record, which he received from the clerk, and paid $18o for, obviously after he had personally inspected said record, that he challenged the genuineness of the notice sent up by the said clerk. It was at this point of his argument that we exhibited to him the notice of the completion of appeal found in the record, which notice had been issued by the clerk, although a copy of it was not served on appellees. Counsellor Witherspoon was asked if he could identify the signature appearing on said notice. He identified same to be that of Allen N. Smith, the clerk of the monthly and probate court. Counsel was questioned from the bench as to whether he was in possession of the notice of completion of appeal, which he said was actually issued, served and returned as the law directs, and which he personally superintended, since he challenged the genuineness of the one appearing in the record, especially so when he assured the Court that he procured a complete set of the record from the clerk before transmission, in which must have been included the notice which he claimed to be the genuine one. Counsel stated that he kept two files containing the record in this case, one being in Sinoe, and the other in his Monrovia office, which he then had in Court. He sought to impress the Court by this story that the notice he claimed to be genuine was left in his file in Sinoe County. It is inconceivable and shocking to this Court that a counsellor of this Court, such as Counsellor William N. Witherspoon is, would embark upon such tactics of deception to mislead the Court, as is patently apparent in his contention that the copy of record from which he was then arguing before this court was short of such an essential and necessary document which he claimed to be in Sinoe County; yet he attacked the genuineness of the one forwarded to this Court in the record certified by the clerk. Counsellor Anthony Barclay, of counsel for appellants, LIBERIAN LAW REPORTS 201 very strongly and ably defended the resistance to said motion thus filed, and quoted in support of his position our statute laws as well as the common law. If the facts stated in said resistance fairly and correctly related to the circumstances under which the postponement of the review of said case was granted on the request of appellees’ counsel, from October 19 to October 25, 196o, there could be no doubt of the denial of said motion on the grounds of waiver and estoppel. Now let us see how far, in point of fact, the request of Counsellor Momolu Cooper, for appellees, for postponement of the hearing of said case from the date it was bulletined to be heard, that is to say, October 19, 196o, when he appeared, in keeping with assignment and asked for postponement because he had just returned to Liberia from foreign parts, and had not had the time to study the record to be able to prepare a brief (requesting in the meantime that a further assignment be made for the October 25, 196o, which request appellants expressed no objection to, and the court thereupon granted same) could occasion a loss to the said appellees of the right, by estoppel, of moving the Court to dismiss said appeal if the irregularities complained of in said motion existed. In support of their contention, appellants’ counsel produced and read the following: “Where a party to a judicial proceeding admits by some act or conduct the jurisdiction of the court, he may not thereafter, simply because his interest has changed, deny the jurisdiction, especially where the assumption of a contrary position would be to the prejudice of another party who has acquiesced in the position formally taken.” King v. Williams, [1925] LRSC 8; 2 L.L.R. 523 (1925) , Syllabus 3. This citation was buttressed by similar legal references made from the common law, the substance, text and meaning being the same. It appearing to us that the jurisdictional point intended to be made could not be applicable in the instant case, the 202 LIBERIAN LAW REPORTS learned counsellor was asked whether he intended to have this Court accept the theory advanced by him to the effect that jurisdiction obtained by the court below over the persons of the appellees, through their appearance precluded them, on appeal, from moving this Court to dismiss said appeal if the jurisdictional steps to the perfection of appeal, as the law mandatorily requires, had not been taken, merely because of the appearance of appellees’ counsel on the day assigned for the hearing of said appeal, and because of the reasons as stated in requesting the postponement conceded by appellants and accepted by the court, even though none of the issues involved in the case on appeal had been gone into. Counsel half-heartedly answered in the affirmative. It is the considered opinion of this Court that the case of King v. Williams, referred to and quoted by the learned counsellor, and relating to the jurisdictional status of a party, admitted by some act or conduct of his, as quoted, supra, in this opinion, can in no wise be made applicable to the points raised in appellants’ resistance to said motion, since at the call of the case on the day the assignment was first made, at the time of the application for postponement, for the reasons stated in the minutes of court, the court had not entered upon any of the issues involved in the case, nor had the trial of said case commenced. Appellees were therefore not estopped, nor could they be considered as having waived their right to file a motion to dismiss said appeal, if any of the jurisdictional steps provided under the statute and rules of Court had not been taken by appellants. We now come to the motion to dismiss. This Court has held in several of its rulings that it is the service of the notice of appeal which alone gives the appellate court jurisdiction over the appellees, and such legal service is evidenced only by the official return of the ministerial officer. It also is the rule of this Court that, when an appeal is announced to the Supreme Court from a judgment, ruling LIBERIAN LAW REPORTS 203 or decision, counsel for the appealing party shall, after announcing appeal and performing all of the statutory acts incident to the completion of said appeal, and after having taken all of the jurisdictional steps within the time prescribed, serve a copy of the notice of appeal upon his adversary; the original of which must have been issued by the clerk and served and returned by the ministerial officer. There is no other rule or procedure prescribed by which an appeal is considered as correctly and legally taken to warrant the Supreme Court in exercising jurisdiction over a case on appeal, nor is there any common law that could authorize a procedure other than what is already provided by our statutes and the rules of this Court. As much as this Court would like to enter upon the merits of the many issues raised in this case in the court below, we find ourselves prevented, for the reasons mentioned, supra; and therefore we have no alternative but to grant the motion to dismiss the appeal. We wonder if the occasion demands the imposition of the penalty provided under our rules : “Any counsel failing to observe this rule, and as a result of which said failure his appealed case shall be dismissed, shall be punished by the Supreme Court in such manner as the circumstances of the particular case may warrant, even to suspension from practice.” R. Sup. Ct. IV (4) 13 L.L.R. 693, 697 (1959). Since the counsel who supervised the preparation of the record for transmission to this Court, and upon whom rested the responsibility for the taking of all of the jurisdictional steps necessary within the prescribed legal time was himself the potential appellant in this case and the only one who had been injured because of his own irregularities, the penalty thus provided is hereby waived. The appeal is therefore dismissed with costs against the appellants. And it is so ordered. Appeal dismissed.