Brown v. Philadelphia, W. & B.R. Co.

• Decision Date: 16 November 1881
• Parties: BROWN v. PHILADELPHIA, WILMINGTON & BALTIMORE R. CO.
• Court: U.S. District Court — District of Delaware

9 F. 183

BROWN v. PHILADELPHIA, WILMINGTON & BALTIMORE R. CO.

United States Circuit Court, D. Delaware.

November 16, 1881

George V. Massey, for the motion.

James W. Gray, contra.

George V. Massey, for the motion, cited the following authorities:

'DOVER November 5, 1881.

'The practice in the superior court of this state is to take off a judgment by default for want of appearance when the application for that purpose is made without unreasonable delay, and the court is satisfied that the failure of counsel to appear at the return term was not owing to gross carelessness. In such cases an affidavit of counsel is never required, but, if insisted on, the court would order it. They would, however, require to be satisfied that the

defendant believed he had a good defence to the whole or some part of the cause of action. This practice, we believe, has always prevailed in this state, and rests in the sound discretion of the court. The second paragraph of section 3 of chapter 102 of the Revised Code obliges the court to take off such judgment upon affidavit made in compliance with its requirements, but this has never been understood to affect further the ancient practice. Of course, if execution had been issued upon such a judgment it would remain cautionary. Chapter 102 is no older than 1852.

'J. P. COMEGYS, C. J. 'John W. HOUSTON, J. 'EDWARD WOOTTEN, J. 'L. E. WALES, J.'

-- And the affidavit of the president of the road of a meritorious cause of action; of a director of the road upon whom process has been served and who notified counsel; of the attorney of the road that he had mistaken the tribunal and had directed the prothonotary of the state court to enter his appearance in the railroad case bona fide, thinking the case was in that court.

James W. Gray, contra, relied upon--

Section 914, Rev. St., conforming the practice in the United States courts to that of the state courts, and to the following provision of the Delaware State Code regulating the practice in the state courts, viz.:

'If the defendant in a writ of summons shall not appear at the return-day thereof, and it shall appear by the return that he was duly summoned, it shall be lawful for the plaintiff, having filed his declaration, to take judgment thereon for default of appearance, according to the rules and practice of the court. But if the defendant shall, at or before the next term after such judgment, by affidavit, deny notice or knowledge of such suit before the judgment was rendered, and shall allege that there is a just or legal defence to the action, or some part thereof, such judgment shall be taken off and he shall be permitted to appear; any execution which may have been issued thereon to remain cautionary. ' Section 3, Del. Rev. Code 1874, c. 102, pp. 633, 634.

BRADFORD, D.J.

The facts in the case are as follows:

The plaintiff brought suit to the last June term of this court to recover damages for injuries suffered by him by alighting from a train en route through this city and stopping temporarily to permit the passengers to obtain refreshment. The summons was properly issued and served upon the corporation defendant. No appearance was ever entered by defendant, and, upon August 2d last, the plaintiff filed his declaration and entered judgment by default for want of an appearance. At the present October term, on October 19th, the plaintiff obtained an order, in the nature of a writ of inquiry, for the ascertainment of the damages by a jury attending at this term.

Upon this state of facts the defendant...