Casey v. Southern Corp.

• Citation: 26 Del.Ch. 447,29 A.2d 174
• Court: Court of Chancery of Delaware
• Decision Date: 30 November 1942
• Parties: DANIEL CASEY, JR., Complainant Below, Appellant v. SOUTHERN CORPORATION, a Delaware Corporation, Defendant Below, Appellee

29 A.2d 174

26 Del.Ch. 447

DANIEL CASEY, JR., Complainant Below, Appellant v. SOUTHERN CORPORATION, a Delaware Corporation, Defendant Below, Appellee

Court of Chancery of Delaware

November 30, 1942

MOTION to dismiss appeal.

Appeal dismissed.

Daniel Casey, Jr., in propria persona.

Hering Morris, James & Hitchens, for appellee.

LAYTON C. J., RICHARDS, RODNEY, SPEAKMAN and TERRY, JJ., sitting.

OPINION

LAYTON, Chief Justice.

The appellee, by a motion to dismiss, has challenged the jurisdiction of this court to hear and determine an appeal taken from a final decree of the Chancellor, on the ground that it was not accomplished within the time allowed by the applicable law and rule of court.

By Article IV, Section 12(4) of the Constitution, this court has jurisdiction to receive appeals from the Court of Chancery; and, by Section 5146 of the Revised Code of 1935, it is provided that

"No appeal from a final decree of the Chancellor shall be received or entertained in the Supreme Court, unless the praecipe therefrom shall be duly filed in the office of the clerk thereof within six months after the signing of said decree."

The succeeding section saves persons under certain disabilities from the operation of the limitation, and Rule 62 of this court, embodying the provisions of both sections provides that

"No appeal from a final decree of the Chancellor shall be received in this Court unless the praecipe shall have been duly filed in the office of the Clerk of this Court within six months after the signing of said decree; and the cause shall thereafter proceed in accordance with the rules and practice of this Court. The limitation of the foregoing provision with respect to any person under disability of infancy, coverture or incompetency of mind, at the time of signing a final decree, shall begin to run at the ceasing of such disability and not from the time of signing said decree."

By Rule 4 it is provided that all causes in error ar appeal shall be begun in this court by filing with the clerk thereof a praecipe signed by counsel; and by Rule 64, the plaintiff in error or appellant, on filing a praecipe, is required to pay to the clerk the sum of twenty-five dollars, the whole, or such part as may be found to be due, to be refunded upon the decision of the cause.

The matter of this appeal is a final decree signed by the Chancellor on April 16, 1941. At this time, the appellant, a non-resident, was acting for himself in the proceedings in the Court or Chancery, the services of three different solicitors previously employed by him having been dispensed with. Through some oversight the appellant was not notified that the decree had been signed, and he had no knowledge of the fact until the fifth day of August, 1941 when, upon his personal inquiry at the office of the Register in Chancery, he was informed.

It appears that he did nothing in the way of prosecuting an appeal from the decree until January 30, 1942, when he addressed the following letter to the clerk:

"January 30th, 1942.

"Chief Clerk,

"Supreme Court,

"State of Delaware,

"Wilmington, Delaware.

"Dear Sir: Re Daniel Casey, Jr. vs. Southern Corporation

"Under date of August 13th, 1941 Chancellor Harrington advised me as follows:

" I received your letter of August 7th and regret that you were not notified when the order was entered in your case. I had assumed that one of the Clerks had notified you of the result long ago. There is nothing further that I can do in the matter, but you, of course, have the right to take an appeal to the Delaware Supreme Court if you think the case was incorrectly decided.'

"Under date of August 30th, 1941 I was advised by the Secretary of State, of Delaware, that a period of six months is now allowed by law for an appeal from a decree of the Chancellor to the Supreme Court. It is now my wish to appeal this case to your Honorable Court based entirely on questions of fact that there is a preponderance of evidence in the Record requiring the Special Master to reach conclusions other than stated in his report, and the further fact that the testimony of James Monahan proved the fraud wherein the second Fifty thousand dollars was taken from Southern Corporation in transactions involving the Boston Insurance firm mentioned, and that the Chancellor erred as to Law in refusing my Petition of June 5th, 1940 for the appointment of Mr. Rommey Spring, of Boston, Mass., as Commissioner to take the testimony of a reluctant witness who had been previously been served, under the process of a Delaware Commission, and flagrantly disregarded Constitutional authority.

"Furthermore in light of the information contained in the Boston depositions of Record, this testimony made it mandatory for the Special Master to act under his original Order of appointment, considering the especially designed provision inserted, by agreement, for the examination of this witness, and there was consistent refusal prior to the presentation of the said Petition.

"May I request an appearance before your Honorable Court so that I may portray the sad situation, and obtain the necessary review, assistance and action required.

"Respectfully yours,"

The letter, though incorrectly addressed to the clerk at Wilmington, was received by him, but no reply to it was made. No member of this court had knowledge of the case until June 3, 1942, when the appellant wrote to the Chief Justice asking for permission to appear before this court "to argue his right to appeal from the decision of the Chancellor in the case of Daniel Casey, Jr., vs. Southern Corporation", and stating that he had appeared personally in the proceedings below, and that he was not a member of the bar.

In reply to this letter, the appellant was informed that the Supreme Court would be in session on June 16; that at that time he might briefly present his matter to the court; that the fact that he was not a lawyer would not bar him; but whether there was anything before the court upon which it could act was another matter.

On June 16, 1942, the appellant appeared. The case of Daniel Casey, Jr., v. Southern Corporation was not on the court calendar. It was found that no appeal had been entered. Informal statements made by the appellant and by counsel for Southern Corporation gave some inkling of the matter in dispute. The appellant was informed that there was nothing upon which any action could be taken, but that an appeal properly before the court would, of course, be heard.

On July 8, 1942, the appellant, having paid the cost deposit required by Rule 64, filed a praecipe directing the clerk to issue a citation and writ of appeal, and thereupon the writ was issued.

In these circumstances the appellee has moved to dismiss the appeal.

The right to a review in an appellate tribunal exists only when and to the extent provided in the Constitution and laws of this State. Elbert v. Scott, et al., 28 Del. 1, 5 Boyce 1, 90 A. 587. It is not an inherent or inalienable right; and the general rule is that an appellate court is without jurisdiction to hear an appeal unless the proceeding therefor is filed within the time allowed by the governing law or rule of court. An apparent, though not real, exception to the rule is that a review proceeding will not be defeated if the failure to file the appeal within the time limited has been occasioned by the default of some officer such as a clerk or Judge. See 3 Am. Jur. 139. This is clearly for the reason that, in such case, the party seeking the review has done all that...