281 A.2d 24 (Del. 1971), State ex rel. Caulk v. Nichols

Citation:281 A.2d 24
Party Name:STATE of Delaware on the relation of Bernard CAULK and Delores Caulk, his wife, Plaintiff Below, Appellant, v. Judge Frederick J. NICHOLS, of Magistrate Court #13, Defendant Below, Appellee.
Case Date:June 14, 1971
Court:Supreme Court of Delaware
 
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Page 24

281 A.2d 24 (Del. 1971)

STATE of Delaware on the relation of Bernard CAULK and

Delores Caulk, his wife, Plaintiff Below, Appellant,

v.

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

Defendant Below, Appellee.

Supreme Court of Delaware.

June 14, 1971.

Reargument Denied June 29, 1971.

Page 25

Upon appeal from the Superior Court. Affirmed.

John S. Grady, of Community Law Service, Wilmington, for appellants.

Brian P. Murphy, Deputy Atty. Gen., Wilmington, for appellee.

CAREY and HERRMANN, Justices, and SHORT, Vice-Chancellor, sitting.

CAREY, Justice (For the majority of the Court).

The relators, Bernard Caulk and Delores Caulk, his wife, were the defendants in an action brought by their landlord, a corporation, to recover unpaid rent for the dwelling house in which they lived. The action was brought in Magistrate Court No. 13, where it was heard by Justice of the Peace Nichols, appellee herein. The amount of the judgment was $300.00, plus costs. The relators requested an appeal to the Superior Court without furnishing security as required by 10 Del.C. § 9578(b). Judge Nichols refused to permit the appeal in the absence of surety on the bond, on the ground that he had no power to waive the bond requirement. Relators then instituted this mandamus action in Superior Court to compel the Justice of the Peace to allow the appeal without surety. The Superior Court decided the matter adversely to the relators, 267 A.2d 610, whereupon this appeal followed.

10 Del.C. §§ 6578(b) and 9578(d) read as follows:

'(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 appeal. * * *

'(d) When the plaintiff is the appellant and no counterclaim is involved, such plaintiff need offer no security to cover the judgment appealed from or the costs; provided, that the costs of the proceedings before the Justice are paid before the appeal is taken and the advance deposit for costs provided in the Superior Court Rules is made.'

The issues presented are whether a Justice of the Peace has the inherent power to waive the surety required by this statute and, if not, whether the requirement as applied to indigent persons violates the State and Federal Constitutions.

This Court has previously held that the provision for a bond in § 9578(b) is to 'afford protection to the successful litigant--to ensure the recovery of his debt.' Bernstein v. Burgess Battery Company, Del.Supr., 3 Storey 469, 171 A.2d 914 (1961). We also have held that §§ 9578 and 9579 are jurisdictional statutes governing the right of appeal from judgments entered in a Justice of the Peace Court; if they are not complied with, the Superior Court has no jurisdiction to entertain the appeal. Ademski v. Ruth, Del.Supr., 229 A.2d 837 (1967).

Page 26

It should be noted, preliminarily, that the plaintiff in the original judgment was not named as a party in Superior Court and is not a party to this appeal, notwithstanding its obvious interest. The effect of its absence, however, has not been briefed or argued by counsel, and we have deemed it advisable to overlook that question and to pass upon the issues which have been argued because of their importance and because the questions would undoubtedly again be brought before us very promptly.

It also should be mentioned that we express no opinion as to whether or not these relators are in fact paupers; we will assume, as did the Superior Court, that they are unable to furnish surety because of poverty.

Some of the cases relied upon by appellants are instances in which the parties seeking relief were financially unable to pay, or to furnish bonds with surety for the payment of, costs or transcripts. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); O'Connor v. Matzdorff, 76 Wash.2d 589, 458 P.2d 154 (1969). They hold that a person cannot be barred from filing an appeal simply because of his inability to pay or provide bond for those expenses. In those instances, any loss due to the lack of a bond would fall upon the Government or the State. Those cases are not in point because these appellants admit that they are able to pay the costs.

Finally, it should be noted that we are not presently concerned with a refusal to permit a person to institute or defend an original action. These appellants had the benefit of a trial in a Court of original jurisdiction; we are presently concerned solely with the right to appeal from the judgment.

Delaware has no statute comparable to the Federal Act, 28 U.S.C. § 1915, which authorizes the institution by paupers of an original action or an appeal, or the defense thereof, without prepayment of fees or costs or security therefor, it a Judge finds that the suit or the appeal is not frivolous, and...

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