Ownbey v. Morgan

• Decision Date: 20 June 1917
• Citation: 30 Del. 297,105 A. 838
• Court: United States State Supreme Court of Delaware
• Parties: JAMES A. OWNBEY, Defendant Below, Plaintiff in Error, v. JOHN PIERPONT MORGAN, WILLIAM P. HAMILTON, HERBERT L. SATTERLEE, and LEWIS C. LEDYARD, as Executors of the Estate of John Pierpont Morgan, deceased

105 A. 838

30 Del. 297

JAMES A. OWNBEY, Defendant Below, Plaintiff in Error, v. JOHN PIERPONT MORGAN, WILLIAM P. HAMILTON, HERBERT L. SATTERLEE, and LEWIS C. LEDYARD, as Executors of the Estate of John Pierpont Morgan, deceased

Supreme Court of Delaware

June 20, 1917

Supreme Court, on writ of error to Superior Court for New Castle County, No. 2 January Term, A. D. 1917. No. 46 January Term, A. D. 1916, below.

S. c below, 6 Boyce 379, 100 A. 411.

ACTION OF FOREIGN ATTACHMENT by John Pierpont Morgan and others, as executors of the estate of John Pierpont Morgan deceased against James A. Ownbey. Judgment for plaintiffs (6 Boyce 379, 100 A. 411), and defendant brings error. Plaintiffs move that defendant, as plaintiff in error, be required to give additional security in the supersedeas bond and to strike out certain portions of the record. Motion for further security in supersedeas bond denied. Motion to strike denied, except that petition to open final judgment and proceedings relating thereto and bill of exceptions are ordered stricken from the transcript. On the merits, judgment affirmed.

This is a writ of error to the Superior Court in a foreign attachment action wherein the defendant below was denied by the court a right to appear and defend the action until he had dissolved the attachment of his property by giving security for an amount at least equal to the money claim made by the plaintiffs below.

The action below was an attachment against the defendant as a nonresident of the state of Delaware. This is a statutory proceeding pursuant to which the sheriff attached shares of stock of the Wooten Land and Fuel Company held or owned by the defendant, and a narr. was afterwards filed by the plaintiffs. Later counsel for the defendant, for the purpose of entering an appearance for the defendant, wrote their names in the usual way on the appearance docket, and the prothonotary received from them pleas. Thereupon the attorney for the plaintiffs filed a written motion asking that the appearance of the defendant's counsel and the entry made by the prothonotary be stricken out and that the pleas be stricken from the files. Counsel for the defendant then filed an answer to the plaintiffs' motion, claiming among other things, that a denial of the right to appear and defend without giving security for the discharge of the property attached violated rights of the defendant secured by the Constitution of the United States. This motion of the plaintiffs below to strike out the appearance was heard by the Court in Banc, and its opinion that the defendant could appear only by entering bail was certified to the Superior Court. 6 Boyce 379, 383, 406, 407, 100 A. 411. Thereupon the Superior Court ordered that the attempted appearance for the defendant and the docket entries be stricken off. A judgment for the plaintiffs for want of an appearance for the defendant was then entered collectible only from the property attached, the amount of the judgment to be ascertained by inquisition at bar. Thereupon the defendant filed a petition asking that the judgment be opened and that he be permitted to appear and defend. A rule issued on this petition and a motion of the plaintiffs to discharge the rule and strike off the petition to open the judgment was certified to the court in banc. The court in banc having heard the matter and having certified to the Superior Court their opinion, the rule was discharged.

An inquisition at bar by a jury was then had and the damages of the plaintiffs ascertained to be two hundred thousand, one hundred and sixty-eight dollars and fifty-seven cents, and a final judgment for that amount rendered. Thereupon the defendant filed a petition to open the judgment entered on the inquisition, and a rule for that purpose was obtained and a motion was made by the attorneys for the plaintiffs to discharge the rule and strike off the petition. These motions were certified to the Court in Banc, heard there and decided against the defendant, and the rule was discharged by the Superior Court pursuant to the opinion of the Court in Banc. An order was then made in the usual course that the attached property, shares of stock, be sold by the sheriff. Later a bill of exceptions containing all the foregoing matters was signed by the Chief Justice in the usual way.

A writ of error was sued out in the Supreme Court by the defendant below and the following assignments of error were filed:

First. The court below erred in making its order of the fifth day of April, A. D. 1916, which after certain findings of fact, was as follows:

"It is ordered by the court that said attempted appearance of Ward, Gray and Neary, Esquires, for said defendant, and the said docket entries made by the prothonotary as aforesaid be stricken out and that said paper writings containing pretended pleas and reply to plaintiffs' motion marked 'Filed' by the prothonotary as aforesaid, be stricken from the files of this court; and

"It is further ordered that judgment for want of appearance collectible only from the property attached, be entered in favor of the said plaintiffs and against the said defendant and further that the amount of said judgment be ascertained by inquisition at bar."

--in that the statutes of the state of Delaware, in supposed conformity to which the said order was made, and the proceedings thereunder in said cause are in violation of the Constitution of the United States, and void, because:

1. Thereby the said Ownbey, who was a citizen of the state of Colorado, was deprived of privileges and immunities of citizens of the several states, contrary to the second section of the fourth article of the Constitution of the United States;

2. Because thereby the privileges and immunities of Ownbey, who was a citizen of the United States, were and are abridged, contrary to the Fourteenth Amendment to the Constitution of the United States;

3. Because the said Ownbey, was and is thereby deprived of his property without due process of law, contrary to the Fourteenth Amendment to the Constitution of the United States; and

4. Because the said Ownbey, was thereby denied the equal protection of the laws, contrary to the Fourteenth Amendment of the Constitution of the United States.

Second. The court below erred in the making of its said order of the fifth day of April, A. D. 1916, whereby it struck out of the record of said cause the appearance of the said James A. Ownbey, said defendant, by his attorneys and thereby prevented the said defendant from making his defense against the claims of the plaintiffs in said cause, and thereupon entered judgment for want of said appearance in favor of said plaintiffs and against the said defendant, in that the statutes of the state of Delaware, in supposed conformity to which the said order was made, and the proceedings thereunder in said cause are in violation of the Constitution of the United States, and void, because:

1. Thereby the said Ownbey, who was a citizen of the state of Colorado, was deprived of privileges and immunities of citizens of the several states, contrary to the second section of the Fourth Article of the Constitution of the United States;

2. Because thereby the privileges and immunities of Ownbey, who was a citizen of the United States, were and are abridged, contrary to the Fourteenth Amendment to the Constitution of the United States;

3. Because the said Ownbey was and is thereby deprived of his property without due process of law, contrary to the Fourteenth Amendment to the Constitution of the United States; and

4. Because the said Ownbey was thereby denied the equal protection of the laws, contrary to the Fourteenth Amendment of the Constitution of the United States.

Third. The court below erred in making its said order of the fifth day of April, A. D. 1916, whereby it struck out from the record of said cause the appearance of said defendant, by his attorneys, and struck from the files of said court the paper writings containing the pleas of said defendant to the merits of said cause which the defendant had filed in said cause, whereby the said court prevented the said James A. Ownbey, said defendant below, plaintiff in error, from defending against the claims of the plaintiffs below, defendants in error, and thereupon ordered judgment to be entered in supposed default of appearance in said cause by said defendant below, plaintiff in error, in favor of said plaintiffs below, and against said defendant below, in that the statutes of the state of Delaware, in supposed conformity to which the said order was made, and the proceedings thereunder in said cause are in violation of the Constitution of the United States, and void, because:

1. Thereby the saidOwnbey, who was a citizen of the state of Colorado, was deprived of privileges and immunities of citizens of the several states, contrary to the second section of the Fourth Article of the Constitution of the United States;

2. Because thereby the privileges and immunities of Ownbey, who was a citizen of the United States, were and are abridged, contrary to the Fourteenth Amendment to the Constitution of the United States.

3. Because thereby the said Ownbey was and is deprived of his property without due process of law. contrary to the Fourteenth Amendment to the Constitution of the United States; and

4. Because the said Ownbey was thereby denied the equal protection of the laws, contrary to the Fourteenth Amendment to the Constitution of the United States.

Fourth. The court below erred in making its said order of the fifth day of April, A. D. 1916, which, after certain findings of fact, was as follows:

"It is ordered by the court that the said attempted appearance of Ward, Gray and Neary, Esquires, for said defendant, and the...