Trala v. Melmar Industries, Inc.

Citation254 A.2d 249
PartiesTheodore TRALA and Vera Trala, his wife, Defendant Below, Appellants, v. MELMAR INDUSTRIES, INC., Plaintiff Below, Appellee.
Decision Date21 May 1969
CourtSuperior Court of Delaware
OPINION

O'HORA, Judge.

Appellants, defendants before a Justice of the Peace Court below, seek reversal of a judgment for the appellee, plaintiff below. Appellee has moved to dismiss on grounds that no signed entry of security, as required for such appeal by 10 Del.C. § 9579, appears in the record.

Appellants have submitted affidavits in dicating that a Magistrate's clerk or secretary told them that a cash deposit in the amount of the judgment appealed from was necessary in order to prosecute the appeal. The cash deposit was made and appeal papers were issued. Appellants at the time were without legal counsel. They now resist dismissal on two grounds, (1) that a cash deposit in the amount of the judgment makes a security bond unnecessary, 10 Del.C. § 9579 notwithstanding, and (2) that they should not be penalized for good faith reliance on the instructions of an agent of the Court.

Appellants' first ground does not justify ignoring 10 Del.C. § 9579. The purpose of that statute is not only to protect the amount of the judgment below, but also to obtain assurances from a surety that the appeal will be presented with effect, and that any judgment rendered against the appellants in excess of the stated bond will be paid. A mere cash deposit cannot replace these assurances. S. & S. Builders, Inc. v. Eagle Truck Transport, Inc., 11 Terry 346, 130 A.2d 558 (Super.1957).

The second ground likewise fails to justify allowing the appeal. Appellants have submitted uncontradicted affidavits indicating that they relied on information given them by the Magistrate's clerk in depositing cash rather than a signed surety as bond for the appeal. If supplying accurate legal information to litigants who had no counsel were one of the Magistrate's clerk's duties, then the Court might properly grant relief for the clerk's default. Casey v. Southern Corporation, 26 Del.Ch. 447, 29 A.2d 174 (1942). Likewise, if the misinformation concerned records or papers in the clerk's custody, with respect to which he had a duty to posses accurate knowledge, then relief might be in order. Yerkes v. Dangle, 3 Terry 362, 33 A.2d 406 (Super.1943). Here, however, the misinformation...

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2 cases
  • Lecates v. Justice of Peace Court No. 4 of State of Del.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 30, 1980
    ...to assure that any judgment entered against the appellant in excess of the bond amount will be satisfied. Trala v. Melmar Indus., Inc., 254 A.2d 249 (Del.Super.Ct.1969). The bond requirement cannot be waived by a magistrate. State ex rel. Caulk v. Nichols, 281 A.2d 24 (Del.1972). A losing p......
  • C & G Const. Co. v. Wright
    • United States
    • Superior Court of Delaware
    • March 18, 1976
    ...is substantial. In the area of appeal bonds, the purpose is to protect the judgment of the prevailing party. Trala v. Melmar Industries, Inc., Del.Super., 254 A.2d 249 (1969). The language of the appeal statute from the Justice of the Peace Courts to Superior Court is indicative of such '10......

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