Morgan v. Ownbey
Decision Date | 27 November 1916 |
Citation | 29 Del. 379,100 A. 411 |
Court | Delaware Superior Court |
Parties | JOHN PIERPONT MORGAN, WILLIAM P. HAMILTON, HERBERT L. SATTERLEE and LEWIS C. LEDYARD, Executors of JOHN PIERPONT MORGAN, deceased, v. JAMES A. OWNBEY |
Superior Court, New Castle County, March Term, 1916.
FOREIGN ATTACHMENT, No. 46, January Term, 1916.
Argued before PENNEWILL, C. J., BOYCE, CONRAD, RICE and HEISEL, JJ in Court in Banc.
Action by foreign attachment in the Superior Court by John Pierpont Morgan, William P. Hamilton, Herbert L. Satterlee and Lewis C. Ledyard, executors of John Pierpont Morgan, deceased against James A. Ownbey.Entry of appearance by attorneys for defendant on the appearance docket, etc., as in ordinary actions, without giving security required by statute.Motion to strike off.Granted.Judgment for want of appearance at the second (March) term, amount to be ascertained by inquisition at bar.Motion to open judgment and permit defendant to appear and disprove claim of plaintiffs, without giving security.Denied.Final judgment obtained by inquisition at bar, at the subsequent (May) term.Motion to open final judgment, and permit defendant to appear without security and disprove or avoid the debt or claim of plaintiffs.Denied.
These several motions, in turn, were, without prejudice to plaintiffs, first heard by the Court in Banc.
The writ of foreign attachment was issued upon affidavit required by the statute, with direction to the sheriff, indorsed on the writ, that he summon as garnishee the Wooten Land and Fuel Company, and demand bail in the sum of two hundred thousand dollars.The sheriff made due return of the writ that he attached all the shares of the capital stock of James A. Ownbey in the Wooten Land and Fuel Company, a corporation of the State of Delaware, with all the rights thereunto belonging, and left a copy of the process with certain directors of the company and received from the same a certificate, made part of the return, showing the number of shares held or owned by the defendant to be thirty-three thousand three hundred and twenty-four and one-third.
On the first rule day plaintiffs filed a declaration on the common counts, without bill of particulars, with copy, and ruled pleas by first general rule day thereafter.
Ward Gray and Neary, attorneys for defendant, for the purpose of entering an appearance for defendant, wrote their names on the appearance docket as in ordinary cases, and on the same day filed pleas with the Prothonotary, who marked the same "Filed," and made the following entry in the appearance docket:
On March 13, 1916, the attorneys for the plaintiffs presented a written motion to the court, asking that the appearance and the entry so made be stricken off, and that the pleas be stricken from the files of the court, for the reason that security required by the statute had not been given.
On March 14, 1916, at the request of the attorneys for defendant, the time for the argument of the motion was enlarged; and on March twenty-first they filed with the Prothonotary another paper in the nature of an answer to the motion, which after reciting the docket entries is as follows:
The Prothonotary marked the same "Filed," and made the following entry in the appearance docket:
On March 27, 1916, attorneys for plaintiffs filed a further written motion to the effect that the entry so made in the appearance docket be stricken off; that the paper writing containing reply to plaintiff's first motion be stricken from the files, for the reason that security required by the statute had not been given; and on the same day, they also filed another written motion, viz.:
The Superior Court, considering that the questions of law raised by the motions ought to be heard by the Court in Banc, did, upon the joint application of the parties, without prejudice to the plaintiffs, direct the same to be so heard.
Accordingly the motions came on to be heard by the Court in Banc.
ARGUMENT FOR PLAINTIFFS.
In foreign attachments under the Delaware statute a common appearance cannot be entered and the defendant cannot appear and defend without entering special bail.Section 4137, Revised Code of 1915;Section 4123, Id., Reybold v. Parker,6 Houst. 544.
The Act passed in 1770(Rev....
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