171 A.2d 914 (Del. 1961), Bernstein v. Burgess Battery Co.

Citation:171 A.2d 914, 53 Del. 469
Party Name:Sidney BERNSTEIN t/a Tasty Candy Company, Defendant Below, Appellant, v. BURGESS BATTERY COMPANY, an Illinois corporation, Plaintiff Below, Appellee.
Case Date:June 16, 1961
Court:Supreme Court of Delaware
 
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Page 914

171 A.2d 914 (Del. 1961)

53 Del. 469

Sidney BERNSTEIN t/a Tasty Candy Company, Defendant Below, Appellant,

v.

BURGESS BATTERY COMPANY, an Illinois corporation, Plaintiff

Below, Appellee.

Supreme Court of Delaware.

June 16, 1961.

Page 915

Nathan P. Michlin and Joseph P. Hurley, Wilmington, for appellant.

Louis Goldstein, Wilmington, for appellee.

SOUTHERLAND, Chief Justice, WOLCOTT, Justice, and SHORT, Vice Chancellor, sitting.

SOUTHERLAND, Chief Justice.

This is an interlocutory appeal from the Superior Court under the recent amendment to Article IV, Section 11 of the Constitution, Del.C.Ann. 52 Del.L. c. 240.

The point before us is whether a losing plaintiff in a suit before a justice of the peace must give security to perfect an appeal to the Superior Court.

Burgess Battery Company sued Sidney Bernstein in the court of a justice of the peace. On September 13, 1960, judgment by default was entered against Burgess. On September 28, 1960, the justice of the peace allowed an appeal to the Superior Court, but, according to the transcript of proceedings, did not require security. In the Superior Court Bernstein moved to dismiss the appeal on the ground that the appeal had not been perfected as required by statute. The court refused the motion, and Bernstein appeals to this Court.

The applicable statutory provisions are found in 10 Del.C. §§ 9577-9579. They read:

[53 Del. 471]' § 9577. Right to appeal

'(a) A party against whom a judgment is given by a justice of the peace may appeal to the Superior Court if the judgment is given----

'(1) Without a referee trial, and the amount exceeds $5, exclusive of costs; or

'(2) Upon the report of referees, and the amount exceeds $15, exclusive of costs.

'(b) A plaintiff or defendant, as the case may be, may appeal to the Superior Court on a judgment given by a justice of the peace if the judgment is given----

'(1) Without a referee trial, and any part of the plaintiff's demand, or the defendant's counterclaim or set-off, exceeding $5 is disallowed or defalked; or

'(2) Upon the report of referees, and any part of the plaintiff's demand, or the defendant's counterclaim or set-off, exceeding $15 is disallowed or defalked.

' § 9578. Time for appeals; security

'(a) An appeal shall be allowed by the Justice at any time within 15 days from the day of giving the judgment and not after, counting that day as...

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