Quentin W.K. v. Debbie L.K.
Decision Date | 08 December 1987 |
Docket Number | No. 285,1987,285,1987 |
Citation | 538 A.2d 1113 |
Parties | QUENTIN W.K., Defendant Below, Appellant, v. DEBBIE L.K., Plaintiff Below, Appellee. . Submitted: |
Court | United States State Supreme Court of Delaware |
Family Court, New Castle County.
DISMISSED.
Before HORSEY, MOORE and WALSH, Justices.
This 5th day of February, 1988, it appearing that:
1) This appeal is from an order of the Family Court regarding custody of a minor. Accordingly, the provisions of 10 Del.C. § 961, including the posting of bond with surety, control this appeal.
2) The father filed this appeal on September 3, 1987 and contemporaneously moved for a bond pursuant to 10 Del.C. § 961(c). By order dated September 9, 1987 the Family Court set bond in the amount of $500 with surety as approved by the Family Court.
3) To date no appeal bond with surety has been filed by the appellant, who contends that such a bond is unavailable. He has offered to deposit the sum of $500 cash in lieu of a bond. The appellee has moved to dismiss the appeal.
4) Once again this Court confronts the plain and unequivocal language of a bond statute versus the equities of the case. Unlike 10 Del.C. § 960(d), relating to other appeals from the Family Court, and permitting bond with or without surety, 10 Del.C. § 961 specifically relates to appeals from custody orders. By the terms of § 961(d) a surety is required.
5) Under Delaware law a surety is one who is bound "for the payment of a sum of money, or for the performance of something else for another, who is already bound for the same". W.T. Rawleigh Co. v. Warrington, Del.Super., 199 A. 666, 667-68 (1938). Thus, where a statutory requirement of a bond with surety exists, no substitute therefor is permitted. Williams v. West, Del.Supr., 479 A.2d 1253, 1254 (1984); S & S Builders v. Eagle Truck Transport, Inc., Del.Super., 130 A.2d 558 (1957).
6) Since the appellant has failed to comply with the unambiguous requirements of 10 Del.C. § 961(c), there is no recourse but to dismiss the appeal. The defect is jurisdictional. Williams v. West, supra.
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Wiland v. Wiland
...v. West, Del.Supr., 479 A.2d 1253, 1254 (1984); thus, there is no recourse but to dismiss the appeal. See, e.g., Quentin W.K. v. Debbie L.K., Del.Supr., 538 A.2d 1113, Moore, J. (1988) (ORDER); Armstrong v. Roberts, Del.Supr., 533 A.2d 1254, Christie, C.J. (1987) NOW, THEREFORE, IT IS ORDER......