Discount and Credit Corp. v. Ehrlich
| Decision Date | 20 October 1936 |
| Citation | 187 A. 591,37 Del. 561 |
| Court | Delaware Superior Court |
| Parties | DISCOUNT AND CREDIT CORPORATION, a corporation of the State of Delaware, plaintiff below, v. JACOB C. EHRLICH, defendant below |
Superior Court for Kent County, No. 37, April Term, 1936.
Certiorari to Court of Common Pleas for Kent County.
The record returned by the Court of Common Pleas, in so far as is necessary for the consideration of this case, shows that the suit in said Court of Common Pleas was instituted on December 20, 1935; that the plaintiff's statement of claim was filed on that date; that the summons was issued to the Sheriff of New Castle County for service on the defendant that the summons was served on the defendant, in New Castle County, on December 26, 1935; that the defendant did not appear pursuant to said summons; that a motion for judgment for want of a sufficient answer was made by the plaintiff on January 7, 1936; and that pursuant thereto judgment in favor of the plaintiff was entered on January 10, 1936.
The exceptions filed by the defendant below to the record returned by the Court below set out the reasons with sufficient particularity, but for the purposes of this case they may be briefly stated as follows:
1. That evidence showing the jurisdiction of the defendant is not spread upon the record.
2. That the Court of Common Pleas for Kent County is without jurisdiction to issue original process to the Sheriff of New Castle County for service within New Castle County, under the provisions of the Act creating said Court, entitled "An Act creating a Court of Common Pleas for Kent County," being Chapter 262 of Volume 37, Laws of Delaware.
3. That the said Court of Common Pleas is without jurisdiction to issue original process to the Sheriff of New Castle County for service within New Castle County, under the provisions of the Act entitled "An Act to Amend Chapter 262, Volume 37, Laws of Delaware, entitled 'An Act creating a Court of Common Pleas for Kent County,'" being Chapter 234, Volume 40, Laws of Delaware.
4. That it nowhere appears from the certified transcript of the judgment filed in this Court, that the judgment was entered and the amount thereof ascertained in accordance with the laws of this State and the rules of said Court.
5. That it appears from the said certified transcript that the amount of the judgment was not ascertained in accordance with the rules of said Court.
The judgment is reversed.
John B Jester for defendant below.
Howard E. Lynch, Jr., for plaintiff below.
OPINION
Subsequent to the argument by counsel on the exceptions, this Court advised counsel that it desired to hear them on a question which had not been considered at the time of the argument, namely: Whether Section 1 of the Amendatory Act (40 Del. Laws, c. 234) by which Section 8 of the Act of 1931 (37 Del. Laws, c. 262) was amended, was or was not constitutionally passed in view of Section 16 of Article 2 of the Constitution of 1897, which provides as follows:
Thereafter, argument on the question referred to was submitted to the Court, by counsel, on briefs. The plaintiff below in his brief insists that the question submitted by this Court is an allegation of error pointed out for the first time; that it was not set forth specifically and with certainty in the exceptions, nor was the allegation of error contended for in the argument before the Court, nor in the original brief filed by the defendant below.
In support of his contention he states: "It is a general rule, universally followed by the Courts, that each Court can consider only errors raised by specific objections pointed out in the assignment of error." Citing 11 C. J. 194; Woolley on Delaware Practice, 918; Deputy v. Betts, 4 Harr. 352; Tinley v. Todd, 2 Harr. 290; Cunningham v. Dixon, 1 Marv. 163, 41 A. 519.
The rule of law as stated is followed in this State. However, it has no application to the plaintiff's contention, which is untenable.
The question submitted has been specifically and with certainty raised by the third exception, and is to be determined by the Court in accordance with the law as the Court understands it, and in so determining the Court cannot be restricted by the reasons assigned by the plaintiff below.
The second and third exceptions can be considered together. The question raised by them is whether or not the said Court of Common Pleas had jurisdiction on December 20, 1935, to issue original process directed to the Sheriff of New Castle County for service by him in his county.
Section 1 of Article 4 of the Constitution of 1897 of this State, provides as follows:
"The judicial power of this State shall be vested in a Supreme Court, a Superior Court, a Court of Chancery, an Orphans' Court, a Court of Oyer and Terminer, a Court of General Sessions, a Register's Court, Justices of the Peace and such other courts as the General Assembly, with the concurrence of two-thirds of all the members elected to each House, shall from time to time by law establish."
Section 30 of said Article 4 of said Constitution provides, in part, as follows:
"The General Assembly may by law give to any inferior courts by it established or to be established, or to one or more justices of the peace, jurisdiction of the criminal matters following, that is to say * * * and such other misdemeanors as the General Assembly may from time to time, with the concurrence of two-thirds of all the members elected to each House prescribe."
Section 32 of said Article 4 of said Constittuion provides, in part, as follows:
"Justices of the Peace and the judges of such courts as the General Assembly may establish pursuant to the provisions of Section 1 or Section 30 of this Article shall be appointed by the Governor."
Under the authority contained in the Constitution, the Court of Common Pleas for Kent County was created by the General Assembly of this State, by the passage of an Act entitled "An Act creating a Court of Common Pleas for Kent County," being Chapter 262, Volume 37, Laws of Delaware. Said Act was approved May 13, 1931.
Section 8 of said Act provides, in part, as follows:
"The writs, rules and processes of said Court of Common Pleas shall be served and executed by any Constable for Kent County now authorized by law to serve general process."
Section 11 of said Act provides, in part, as follows:
"The said Court shall have concurrent jurisdiction in Kent County with the Superior Court in all civil actions at law, arising ex contractu or ex delicto, where the value of the matter or thing in controversy, exclusive of interest, shall not exceed the sum of One thousand Dollars ($ 1,000.00)."
Section 12 of said Act provides, in part, as follows:
"The said Court of Common Pleas for Kent County shall also have and may exercise the same jurisdiction and powers in all civil actions as is now or may hereafter be vested in Justices of the Peace for Kent County."
Section 17 of said Act provides, in part, as follows:
Subsequently, the General Assembly passed an Act entitled "An Act to Amend Chapter 262, Volume 37, Laws of Delaware, entitled 'An Act Creating a Court of Common Pleas for Kent County,'" being Chapter 234, Volume 40, Laws of Delaware. Said Amendatory Act was approved April 12, 1935. Nothing is contained in the Amendatory Act which has any pertinency to the consideration of the present case, except Section 1 thereof, by which Section 8 of the original Act was repealed, and a new section was adopted in lieu thereof. By such amendment, that portion of Section 8 of the Act of 1931 above quoted, was changed so as to read as follows:
The only change made in said Section 8 by the Amendment was the inclusion therein of the words "and/or any County or State officer, in any County of Delaware."
It is clearly apparent from the respective provisions of the Act of 1931, that the General Assembly intended to restrict the territorial limits of the said Court of Common Pleas to Kent County. Nothing can be found in the said Act which would indicate otherwise. By reason of such restriction it was not permissible for it on December 20, 1935, to issue original process to be served outside of its territorial limits (50 C. J. 450, Tit. Process, Section 26) unless Section 1 of the Amendatory Act is constitutional.
"Except where there are constitutional provisions which prohibit the amendment or a revision of a law by reference to its title only, the general rule is that when an Act is amendatory or supplemental to a former Act, if the subject of the original Act is sufficiently expressed in its title, and the provisions...
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