Bernstein v. Burgess Battery Co.
| Decision Date | 16 June 1961 |
| Citation | 53 Del. 469,171 A.2d 914,3 Storey 469 |
| Parties | , 53 Del. 469 Sidney BERNSTEIN t/a Tasty Candy Company, Defendant Below, Appellant, v. BURGESS BATTERY COMPANY, an Illinois corporation, Plaintiff Below, Appellee. |
| Court | Supreme Court of Delaware |
Nathan P. Michlin and Joseph P. Hurley, Wilmington, for appellant.
Louis Goldstein, Wilmington, for appellee.
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:
' § 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 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 appeal.
'(c) An appeal shall be allowed to executors or administrators without security.
' § 9579. Entry of security on appeal
'(a) The justice of the peace who allows an appeal shall make an entry of the security offered on appeal as follows:
"On the ... day of ....., A.D. ....., the said A.B. appeals and C.D. becomes surety in the sum of ..... Dollars, that the said appeal shall be prosecuted with effect and also that any judgment which shall be rendered against the said A.B. or his executors or administrators upon the said appeal shall be satisfied, and the said C.D. hereby authorizes and empowers the Superior Court of the State of Delaware in and for ..... County to give judgment against me, the said C.D., or my executors or administrators, as surety, for the same amount as shall be given against the said A.B., or his executors or administrators, and such judgment, if and when entered, shall be a lien upon my real estate, and may be collected and treated as any other judgment in said Superior Court.'
'(b) The entry of security shall be signed by the sureties or it shall be void.'
It is admitted that Burgess...
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State ex rel. Caulk v. Nichols
...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 j......
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Williams v. West
...of the appeal bond statutes is to protect the successful litigant and guarantee payment of the judgment. Bernstein v. Burgess Battery Company, Del.Supr., 171 A.2d 914 at 916 (1961). The legislature may also have wished to prevent frivolous appeals, considering that Delaware appellate courts......
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C & G Const. Co. v. Wright
...See Paley v. State, Del.Super., 5 Terry 64, 55 A.2d 279 (1947) and 82 C.J.S. Statutes 366. Bernstein v. Burgess Battery Company, Del.Supr., 3 Storey 469, 171 A.2d 914, 916 (1961) further supports a reasonable rather than a strict interpretation of Rule 72. In Bernstein (supra), the Plaintif......