Hamilton v. Delaware Motor Trades, Inc.

• Decision Date: 18 May 1931
• Citation: 34 Del. 486,155 A. 595
• Court: Delaware Superior Court
• Parties: JOSEPH S. HAMILTON v. DELAWARE MOTOR TRADES, INC., an unincorporated Association of Persons Using a Common Name

155 A. 595

34 Del. 486

JOSEPH S. HAMILTON v. DELAWARE MOTOR TRADES, INC., an unincorporated Association of Persons Using a Common Name

Superior Court of Delaware, New Castle County

May 18, 1931

Superior Court fo New Castle County, No. 32, May Term, 1931.

This is a suit by the plaintiff against an unincorporated association in the Association name. The suit is brought under section 4198 of the Revised Code of 1915, which reads in part as follows:

"Whenever any business is transacted in this state by an unincorporated association of persons using a common name (ordinary partnerships excepted), suits may be brought and the pleadings conducted against the individuals composing such association by such common name, and judgment recovered therein shall be a lien like other judgments, and may be executed by levy, seizure and said persons in the same manner with respect to them as if they had been made parties defendant by their individual names; satisfaction thereof may also be obtained by attachment process."

The sheriff made a return upon the writ which showed that he had made service of the same upon "T. Coleman Johnson President of Delaware Motor Trades, Inc., an unincorporated association of persons using a common name."

Counsel for the defendant obtained leave to enter a special appearance for the purpose of moving to vacate the return of the sheriff and to quash the writ. The motion to quash the writ was subsequently abandoned as the only objection was to the manner of the service. The motion to vacate the return was based upon two grounds:

1. Because there was no provision made by any Delaware statute or under the Common Law for the service of process in an action brought against an unincorporated association by its common name.

2. There being no provision for the service of process the service in the above case on the alleged president was without authority of law and should be vacated.

The motion to vacate the return of the sheriff is denied.

Charles F. Richards for plaintiff.

John J Morris, Jr., for defendant, upon special appearance.

RODNEY J., sitting.

OPINION

RODNEY, J.

The citation of authorities seems unnecessary to sustain the general rule that, in the absence of an enabling statute, suits could not be maintained for or against an unincorporated association in the association name. 25 R. C. L. 72.

The statute quoted in the Statement of Facts is such an enabling law as to suits against the association and was originally enacted on February 9th, 1866, as section 1, chapter 32, volume 13, Laws of Delaware. While the statute provides that suits can be brought against the individuals composing such unincorporated association by such common name there is not one word of statutory authority regulating the service of the process. The statute authorizes the commencement of the suit and therefore justifies the issuance and maintenance of the writ of summons, but the process to be effective must be legally served or as picturesquely phrased by one authority "it must be brought to the knowledge or attention of the defendant in the manner provided by law for unserved process is as ripened fruit still clinging to the tree." Bowers on Process & Service, page 374, § 253.

Does it necessarily follow because no method of service is expressly provided in the statute that therefore no suit can be maintained? Judge Woolley in his work on Delaware Practice, section 144, says of the act under discussion:

"It has always been a question of doubt as to the method of service under this Statute, as the statute is silent upon the point. It has been intimated by the Court that a service that would be good, if the association were a corporation would likely be good against the association. The point, however, has never come squarely before the Court."

There being no determination of the matter by our own courts one looks in vain to the decisions of other states to find the precise question adjudicated. This is not so remarkable, because, the right of action being statutory, those same statutes which create the right of action almost uniformly provide the method of service.

In State of Minnesota v. Adams Express Co., 66 Minn. 271, 68 N.W. 1085, 38 L. R. A. 225, a service on the officers of the unincorporated defendant was held sufficient. That case was one of mandamus and the form of action being highly prerogative and called--the "flower" of the jurisdiction of the Law Courts ( Knight v. Ferris,...