Canaday v. Superior Court In and For New Castle County

• Decision Date: 08 September 1955
• Parties: , 49 Del. 332 Ward M. CANADAY, Petitioner, v. The SUPERIOR COURT of the State of Delaware in and for NEW CASTLE COUNTY, and the Honorable Charles L. Terry, sitting as Judge of said Court, Respondents. Katharine R. Brainard, Executrix under the Last Will and Testament of Miller Brainard, Deceased, and Samuel Vance, Jr., Intervening Respondents.
• Court: United States State Supreme Court of Delaware

Page 678

116 A.2d 678

10 Terry 332, 49 Del. 332

Ward M. CANADAY, Petitioner, v. The SUPERIOR COURT of the State of Delaware in and for NEW CASTLE COUNTY, and the Honorable Charles L. Terry sitting as Judge of said Court, Respondents Katharine R. Brainard, Executrix under the Last Will and Testament of Miller Brainard, Deceased, and Samuel Vance, Jr., Intervening Respondents.

Supreme Court of Delaware.

Sept. 8, 1955.

Edwin D. Steel, Jr., of Morris, Steel, Nichols & Arsht, Wilmington, for petitioner.

James R. Morford, of Morford & Bennethum, Wilmington, for intervening respondents.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

WOLCOTT, Justice.

This is a petition for a writ of prohibition against the Superior Court of New Castle County. On December 22, 1953, an action was commenced in the Superior Court against Canaday, the petitioner herein, alleging a cause of action for brokerage commissions due the plaintiffs, the intervening respondents herein. The action was commenced by the filing of a complaint and the issuance of a writ of foreign attachment, under which the sheriff, on December 22, 1953, purportedly seized all the shares of stock in Empire Securities, Inc. belonging to the petitioner. The purported writ of foreign attachment served by the sheriff and the copy of the writ left by him with the resident agent of the corporation bore the seal of the Superior Court and a rubber stamp facsimile of the signature of the Prothonotary.

On April 26, 1954, on motion of the plaintiffs, a judgment nisi was entered in the cause against the petitioner. On the same day, the petitioner entered a general appearance and four days later filed an answer to the merits of the action and, also, two affirmative defenses attacking the validity of the writ of foreign attachment.

Thereafter, in advance of a hearing on the merits, the Superior Court heard argument on the affirmative defenses and on March 30, 1955 filed its opinion, Del.Super., 112 A.2d 862, holding (1) that the original writ of attachment was invalid since it bore only a facsimile signature of the Prothonotary contrary to Rule 4(c) of the Superior Court, Del.C.Ann., requiring that all process shall be signed by the Prothonotary, (2) that the purported copy of the writ (characterized as a 'duplicate original') left with the resident agent was a substantial compliance with 8 Del.C. §§ 324(b) and 321 requiring that a certified copy of the original writ be left with the resident agent, but (3) that by entering a general appearance and filing an answer to the merits the petitioner had submitted himself to in personam jurisdiction of the Superior Court, despite the invalidity of the original writ of foreign attachment.

Thereafter, the petitioner petitioned this court for a writ of prohibition, asserting that the Superior Court proposed to enter an order overruling the affirmative defenses of the petitioner and directing that the cause proceed to trial on the merits on the ground that the petitioner had subjected himself to in personam jurisdiction of that court. The plaintiffs below were permitted to intervene as respondents, and the petition was set down for hearing.

The brief of the petitioner sets forth three points in support of the issuance of a writ of prohibition. Points 1 and 2 relate to the legality of the writ of foreign attachment which the Superior Court has held to be invalid. Point 3 asserts error in the holding of the Superior Court that petitioner, by entering a general appearance and answering to the merits of the complaint, submitted to in personam jurisdiction of the Superior Court.

The intervening respondents moved to strike Points 1 and 2 from the petitioner's brief on the ground that these questions had been resolved by the court below in favor of the petitioner and that therefore the Superior Court was not threatening to take jurisdiction over the cause and the petitioner in reliance upon its ruling upon those questions. While the motion of the intervening respondents is in form a motion to strike portions of the brief, we regard it as a motion to limit the issues to be argued on the petition for prohibition.

We agree with the position of the intervening respondents with respect to Points 1 and 2 of the petitioner's brief. In Clendaniel v. Conrad, 3 Boyce 549, 83 A. 1036, it was held that a writ of prohibition will issue from a superior to an inferior tribunal solely for the purpose of preventing the inferior tribunal from exceeding the limits of its jurisdiction. It necessarily follows therefore, that if the inferior tribunal has denied is jurisdiction based upon some particular theory, there is no occasion to interpose a barrier to the exercise of jurisdiction upon that theory.

The petitioner argues in support of the retention of Points 1 and 2 of his brief that he must prevail with respect to all three points asserted in order to obtain the relief sought. We find difficulty, however, in following the argument. The petitioner has prevailed in the court below in his position that the writ of foreign attachment was invalid. There is, accordingly, no threat on the part of the court below to assume jurisdiction of the cause upon the theory that the writ of foreign attachment is a valid process. The motion to limit the issues raised by the petition will therefore be granted.

It is true, as petitioner suggests, that the effect of this holding is to split the case into two parts for the purpose of appellate review--ordinarily an undesirable result. This consequence, however, inevitably flows from the nature of the writ of prohibition. We cannot in this proceeding review the correctness of the Superior Court's rulings on the validity of the attachment.

However, at the argument on the intervening respondents' motion to limit the issues, this court, sua sponte, asked for further briefing on the question of its authority to entertain a petition for a writ of prohibition under the circumstances constituting the foundation for the presentation of Point 3 asserted in the petitioner's brief.

These circumstances are that in an action commenced by a writ of foreign attachment the defendant appeared generally, answered to the merits, and at the same time raised affirmative defenses attacking the invalidity of the process which had brought him into court. The court below held that the process was invalid and should be quashed but that the general appearance of the petitioner below answering to the merits amounted to a submission to personal jurisdiction irrespective of the validity of the writ of foreign attachment. The question thus raised by Point 3 of the petitioner's brief involves the effect of the adoption by the Superior Court on January 1, 1948 of its new Rules of Civil Procedure, based largely upon the Federal Rules of Civil Procedure, 28 U.S.C.A., which purportedly abolish the distinction prevalent under the former practice between general appearances and special appearances for the purpose of attacking jurisdiction.

We do not reach at this juncture of the proceedings before us the precise question presented by Point 3. We are faced initially with a determination of our own jurisdiction to consider the correctness of the holding of the court below through the medium of a petition for a writ of prohibition. Obviously, the petitioner, had he so elected, could have permitted the cause below to go to trial and final judgment and then by writ of error had an ultimate review of the precise question. He elected to petition for a writ of prohibition which, by Art. IV, § 11(6) of the Constitution of this state, Del.C.Ann., we have original jurisdiction to issue.

The determination of the propriety of this petition requires us to assume, without so deciding, that the ruling of the court below upon Point 3 was erroneous in law and that such erroneous ruling is the only basis for the retention by the Superior Court of jurisdiction over th person of the petitioner.

Initially, we observe that the appellate jurisdiction of this court over proceedings in the Superior Court is limited to review by writs of error by Art. IV, § 11(1) of the Constitution. The grant of appellate jurisdiction by writ of error limits review to final judgments of the Superior Court. Ownbey v. Morgan, 7 Boyce 297, 105 A. 838; Trowell v. Diamond Supply Co., 8 Terry 422, 91 A.2d 797. There is no provision in our law granting appellate review as a matter of right to a litigant of interlocutory orders of the Superior Court.

We further note that this petition for a writ of prohibition presents no dispute of fact. The correctness or incorrectness of the ruling of the court below that the petitioner has submitted to in...