267 A.2d 610 (Del.Super. 1970), State ex rel. Caulk v. Nichols

Citation:267 A.2d 610
Party Name:STATE of Delaware, on the Relation of Bernard CAULK and Delores Caulk, his wife, Plaintiff, v. Judge Frederick J. NICHOLS, of Magistrate Court #13, Defendant.
Case Date:June 09, 1970
Court:Superior Court of Delaware
 
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Page 610

267 A.2d 610 (Del.Super. 1970)

STATE of Delaware, on the Relation of Bernard CAULK and

Delores Caulk, his wife, Plaintiff,

v.

Judge Frederick J. NICHOLS, of Magistrate Court #13, Defendant.

Superior Court of Delaware, New Castle County.

June 9, 1970.

Page 611

John S. Grady, Wilmington, for plaintiff.

Brian P. Murphy, Deputy Atty. Gen., Dept. of Justice, Civil Division, Wilmington, for defendant.

OPINION

MESSICK, Judge.

This is a Motion for Summary Judgment by plaintiffs, Bernard Caulk and Delores Caulk, his wife, and a Motion for Cross Summary Judgment by defendant, Judge Frederick J. Nichols, in a mandamus action wherein plaintiffs are petitioning the Superior Court to order Judge Nichols of Justice of the Peace Court #13 to permit plaintiffs to appeal without security. The facts of the case have been agreed to by stipulation and the basic issue in this action is the legality of 10 Del.C. § 9578(b).

On December 18, 1969, after a hearing before Judge Frederick Nichols, a judgment was entered against the Caulks in favor of Monaghan Realty for $300.00 plus costs. Bond for appeal was set at $600.00 and court costs.

On December 29, 1969, plaintiffs requested a waiver of the security required by 10 Del.C. § 9578(b) on the ground that plaintiffs could not afford to obtain a bond. An affidavit was submitted in support of this request.

On January 2, 1970, security was lowered to $318.60; however, Judge Nichols refused to waive the appeal bond on the ground that he was bound by 10 Del.C. § 9578(b).

On January 16, 1960, plaintiffs filed a writ of mandamus asking the Superior Court to order Judge Nichols to waive the $318.60 security.

Page 612

On February 13, 1970, plaintiffs and defendant filed motions for summary judgment and cross summary judgment and stipulated to the aforesaid statement of facts. It is undisputed that the plaintiffs Caulk are indigent persons within the OEO poverty guidelines and definitions.

Title 10 Del.C. § 9578 reads as follows:

'(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 one, upon the party entitled to the appeal or his agent or attorney praying it.

(b) The party appealing shall offer security in such sum as the Justice deems sufficient to cover the judgment appealed from and the costs on the...

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