Blodgett v. Hudson

• Decision Date: 23 April 1917
• Citation: 29 Del. 462,100 A. 571
• Court: Delaware Superior Court
• Parties: WILLIAM W. BLODGETT, d. b., v. JOHN P. HUDSON, p. b

100 A. 571

29 Del. 462

WILLIAM W. BLODGETT, d. b., v. JOHN P. HUDSON, p. b

Superior Court of Delaware, Kent County

April 23, 1917

Superior Court, Kent County, April Term, 1917.

CERTIORARI No. 23, April Term, 1917.

ACTION OF ASSUMPSIT before a justice of the peace by John P. Hudson against William W. Blodgett, on a book account for goods sold and delivered. Demand thirty-six dollars. Judgment for plaintiff. Defendant brings certiorari. Judgment affirmed.

The action was begun by a "forthwith" summons, on the twenty-sixth day of January, A. D. 1917. The judgment was entered on the same day "for thirty-six dollars with interest from the first day of May, A. D. 1916."

The exceptions to the record are: It does not appear by the record (1) that the justice was satisfied by the oath of the plaintiff, or any credible person that there was danger of the plaintiff losing the benefit of his process by delay, as required by Rev. Code 1915, § 4006, in case of a forthwith summons; (2) that the justice set down the day of the return of the forthwith summons in the docket as required by Rev. Code 1915, § 4028; it does appear by the record (3) that the judgment given by the justice was not for a sum certain, in that the judgment was given "for thirty-six dollars with interest from the first day of May, A. D. 1916; (4) that the judgment was given in an amount larger than the amount demanded, in that, judgment was given for. * * *"

Judgment affirmed.

Ayres J. Stockly for defendant below.

Levin Irving Handy for plaintiff below.

Judges BOYCE and CONRAD sitting.

OPINION

BOYCE, J.

It is true that the transcript of the docket entries filed in this case does not show that the oath required by the statute before issuing a forthwith summons, was made; yet the transcript sent up is aided by having attached thereto the affidavit which was made as required by the statute, and also the summons with the return verified. The transcript does show that the defendant was served personally, and that he appeared on the day the summons issued; and also that on the same day the "plaintiff and defendant being present" the justice proceeded with the trial without objection on the part of the defendant, and gave judgment in favor of the plaintiff. Independent of the affidavit attached to the transcript, the appearance of the defendant, and the trial going on without his excepting to it, cured the defect relied on by the first exception. Bishop v. Carpenter, 6 Del. 526, 1 Houst. 526.

Rev. Code 1915, § 4028, requires the justice to make certain entries in his docket, among them being "the day of issuing process and when it is returnable, the return, and in case of a 'forthwith' summons the day of the...