Jones v. Laderman

CourtSuperior Court of Delaware
Writing for the CourtSPEAKMAN, J.
Citation198 A. 528,39 Del. 308
PartiesEUGENE R. JONES, FRANK E. BROWN, and L. E. O'CONNELL v. BARNET LADERMAN and AARON HELLER
Decision Date25 March 1938

198 A. 528

39 Del. 308

EUGENE R. JONES, FRANK E. BROWN, and L. E. O'CONNELL
v.

BARNET LADERMAN and AARON HELLER

Superior Court of Delaware, New Castle County

March 25, 1938


Superior Court for New Castle County, No. 564, September Term, 1936.

Petition by the defendants to open judgment for the purpose of interposing a defense.

The petition of the defendants for a rule to show cause why the judgment should not be opened was filed on October 18, 1937.

In the petition it was alleged that on October 13, 1936, judgment was confessed in the Superior Court in favor of the plaintiffs and against the defendants, for the sum of twenty-five hundred dollars, by virtue of a warrant of attorney attached to a note for said amount, made by the defendants to the order of the plaintiffs. It was also alleged that the defendants were not informed of the entry of the judgment until on or about February 1, 1937.

No reason was assigned in the petition for the delay in its filing.

Upon the return of the rule the plaintiffs moved that it be discharged, for the reason, among others, that the defendants delayed for an unreasonable length of time before making their application to open the judgment.

The judgment dismissed.

Harold B. Howard for plaintiffs.

Thomas Herlihy, Jr., for defendants.

LAYTON, C. J., RODNEY and SPEAKMAN, J. J., sitting.

OPINION

[39 Del. 309] SPEAKMAN, J.

[39 Del. 310] The judgment was entered at the September Term, 1936, of the Superior Court, and the defendants admitted knowledge of its entry on or about February 1, 1937, at which time the January Term, 1937, of the Court was in session. They took no proceedings to open the judgment at that term, nor at the succeeding March or May terms thereof, but delayed acting until the September Term, 1937.

Judgments entered by confession upon warrants of attorney are in the nature of summary proceedings, and remedial action as to them will not be unduly limited. Miles v. Layton, 8 W. W. Harr. (38 Del.) 411, 193 A. 567, 112 A. L. R. 786.

But an application to open such a judgment cannot be sustained unless it appears either that the defendant has acted with reasonable diligence, or that there was a good excuse for the delay.

A delay of four terms, covering a period of about eight and one-half months after knowledge of the judgment, does not show reasonable diligence, and the defendants have not given any excuse for their delay.

The petition to open the...

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