Blaustein v. Standard Oil Company

• Decision Date: 18 February 1947
• Citation: 43 Del. 516,51 A.2d 568
• Court: United States State Supreme Court of Delaware
• Parties: JACOB BLAUSTEIN, Plaintiff Below, Plaintiff in Error, v. STANDARD OIL COMPANY, a Corporation of the State of Indiana, Defendant Below, Defendant in Error. JACOB BLAUSTEIN, HENRIETTA BLAUSTEIN, FANNY B. THALHEIMER and RUTH B. ROSENBERG, Executors of Louis Blaustein, Deceased, Plaintiffs Below, Plaintiffs in Error, v. STANDARD OIL COMPANY, a Corporation of the State of Indiana, Defendant Below, Defendant in Error. AMERICAN TRADING AND PRODUCTION CORPORATION, a Corporation of the State of Maryland, Plaintiff Below, Plaintiff in Error, v. STANDARD OIL COMPANY, a Corporation of the State of Indiana, Defendant Below, Defendant in Error

51 A.2d 568

43 Del. 516

JACOB BLAUSTEIN, Plaintiff Below, Plaintiff in Error, v. STANDARD OIL COMPANY, a Corporation of the State of Indiana, Defendant Below, Defendant in Error. JACOB BLAUSTEIN, HENRIETTA BLAUSTEIN, FANNY B. THALHEIMER and RUTH B. ROSENBERG, Executors of Louis Blaustein, Deceased, Plaintiffs Below, Plaintiffs in Error, v. STANDARD OIL COMPANY, a Corporation of the State of Indiana, Defendant Below, Defendant in Error. AMERICAN TRADING AND PRODUCTION CORPORATION, a Corporation of the State of Maryland, Plaintiff Below, Plaintiff in Error, v. STANDARD OIL COMPANY, a Corporation of the State of Indiana, Defendant Below, Defendant in Error

Supreme Court of Delaware

February 18, 1947

Clarence A. Southerland, Caleb S. Layton and Aaron Finger Nathan L. Miller (of New York, New York), and Karl F Steinmann (of Baltimore, Maryland) for Plaintiffs Below Plaintiffs in Error.

Hugh M. Morris, Edwin D. Steel, Jr., and S. Samuel Arsht, and Ralph S. Harris, John R. McCullough and Frederick W. P. Lorenzen (of New York, New York) for Defendant Below, Defendant in Error.

HARRINGTON Ch., TERRY, CAREY and PEARSON, J. J., sitting.

OPINION

PEARSON, J.

The matter before this court is the fixing of the form of order to be entered on a writ of error, a dispositive decision of which is set forth in our opinion previously filed. The question is procedural in nature and concerns the application to the situation involved in this case, of the provisions of the foreign corporation attachment statute, Rev. Code of Del., 1935, § 4631, that "judgment shall be given for the plaintiff at the second term after the issuing of the writ" unless the defendant appears.

Plaintiff brought an action of covenant in the Superior Court for New Castle County against defendant, a foreign corporation, purportedly proceeding under the foreign attachment statute. Personal service on defendant was not effected, nor has it appeared generally, but certain of its property was attached. During the first term of the Superior Court after the issuing of the writ (May Term, 1945), defendant appeared specially for limited purposes. Under this special appearance, it moved to quash the attachment writ and dissolve the attachment. Plaintiff opposed, and during the second term (September Term, 1945) moved for a judgment for want of an appearance. A day before the end of that term, the Superior Court entered an order quashing the writ and dissolving the attachment, but staying the effect of the order to permit plaintiff to bring proceedings in error. (See Blaustein v. Standard Oil Co., 43 Del. (4 Terry) 222, 45 A.2d 527, 533). In the order, the court denied plaintiff's motion for judgment for want of an appearance. The day after the end of the second term, a writ of error to the Superior Court was issued on plaintiff's application. In October, 1946, we filed an opinion, Del. Ch., 43 Del. 449, 49 A.2d 726, which embodies our conclusions that, contrary to the holding of the Superior Court, defendant's objections to the writ were invalid. The denial of plaintiff's motion for judgment was included in the assignments of error. This assignment was not discussed in our opinion, since it was not argued until the question of the form of order arose after the opinion was filed.

Plaintiff has presented a form of order providing that the judgment of the Superior Court be reversed, and that a judgment be entered in that court, in favor of the plaintiff for want of an appearance by defendant; and directing that a copy of the order and of our earlier opinion be sent to the Superior Court so that such further proceedings may be had in that court in conformity with this order as may be necessary. Defendant does not object to this form of order insofar as it would reverse the judgment of the Superior Court that the writ be quashed and the attachment dissolved; but opposes plaintiff's form insofar as it would direct the entry of a judgment for plaintiff for want of an appearance, asserting as reasons "first, because this Court is without jurisdiction to determine whether the Superior Court is empowered to enter a default judgment after the second term, until after that question has been passed upon the first instance by the Superior Court itself; and second, if this Court should be of a contrary view, then this Court should hold that the Superior Court is without power to enter a default judgment after the expiration of the second term."

The pertinent language of the statute, Rev. Code of Del., § 4631, is as follows:

"In any attachments to be issued under this section, judgment shall be given for the plaintiff at the second term after the issuing of the writ, unless the defendant shall have caused an appearance by attorney to be entered, in which case the like proceedings shall be had, as in suits commenced against a corporation by summons; * * *."

Both plaintiff and defendant are in accord that the statutory language "unless the defendant shall have caused an appearance by attorney to be entered" should be construed as referring to a general appearance. We think this construction proper and adopt it. Consequently, defendant's special appearance is not within the terms of the quoted condition.

Where a defendant does not appear after an attachment of its property, the practice in the Superior Court has been for the plaintiff to make a motion during the second term for a judgment for want of an appearance; and, where no objection to granting the motion appears, for the court to enter a judgment nisi, which becomes absolute at the end of the second term in the absence of an appearance by the defendant meanwhile. Compare: 2 Woolley on Delaware Practice, § 1295. Here, although plaintiff moved for a judgment during the second term, the Superior Court decided before the end of that term, upon defendant's motion under its special appearance, that the writ should be quashed and the attachment dissolved. Having so decided, the court quite naturally denied plaintiff's motion for judgment. Hence, plaintiff procured no judgment in his favor during the second term. But now, we have held that quashing the writ and dissolving the attachment were error, and the present dispute is whether our order may properly contain any direction to the Superior Court about the entry of a judgment, nisi or absolute, for want of an appearance, and if so, what should the direction be.

We shall first consider the jurisdiction of this Court to direct the entry of any judgment for plaintiff for want of an appearance. Under the Constitution of Delaware, Art. IV, Sec. 12, jurisdiction is conferred on this court "to issue writs of error to the Superior Court and to determine finally all matters in error in the judgments and proceedings in said Superior Court." This, it seems to us, fully empowers the Supreme Court to determine all matters in error in the proceedings below and to direct further proceedings which are appropriate as a consequence of such determination. Rule 46 of the Supreme Court is in harmony with this construction and provides:

"In all cases finally determined in this Court,...