229 A.2d 837 (Del. 1967), Ademski v. Ruth
|Citation:||229 A.2d 837|
|Party Name:||Ruth V. ADEMSKI, Appellant, v. William RUTH, Appellee.|
|Case Date:||May 05, 1967|
|Court:||Supreme Court of Delaware|
Joseph T. Walsh, Wilmington, for appellant.
B. Wilson Redfearn, Wilmington, for appellee.
WOLCOTT, C.J., CAREY and HERRMANN, JJ., sitting.
WOLCOTT, Chief Justice.
This is an appeal from the Superior Court's denial of appellant's motion to dismiss appellee's appeal to the Superior Court from a Justice of the Peace.
Appellee moved to dismiss the appeal. He argues that Rule 5, Del.C.Ann., permitting appeal by serving and filing a notice of appeal requires a waiver by appellee of the issuance of a citation and
writ of error. The motion is denied. The rule is clear that the endorsement acknowledging service of the notice, present in this case, is a sufficient signification of an acceptance. No formal waiver of the issuance of a citation and writ of error, as appellee contends, is required.
Ruth V. Ademski sued William Ruth in the Court of a Justice of the Peace. On June 24, 1966 judgment was entered against Ruth. Thereafter, on June 28, 1966 Ruth's counsel filed with the Justice of the Peace a notice of appeal and a bond with surety as security on appeal.
On July 5, 1966 the Justice of the Peace furnished Ruth's counsel with a transcript of docket entries in a case in which Stephen Ademski, rather than Ruth V. Ademski, was plaintiff against William Ruth. Thereafter, Ruth's counsel made repeated attempts to obtain a transcript of the proper case from the Justice of the Peace to no avail until August 8, 1966 when a transcript was received and promptly filed with the Superior Court. In the meantime, Ruth's counsel filed a praecipe on appeal on August 8, 1966, and Ademski was summoned on appeal on August 11, 1966.
The transcript filed in the Superior Court sets forth the Justice of the Peace Court's docket entries. These show the filing of the action; the issuance of a summons to Ruth; the constable's return; the holding of a trial; the entry of judgment in favor of Ademski, and the advice to the parties of their right to appeal.
Ademski then moved to dismiss the appeal by reason of the failure of the transcript to contain an entry of allowance of the appeal, and of security on appeal, in violation of 10 Del.C., §§ 9578, 9579. The Superior Court denied the motion to dismiss. 1
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