Red Men's Fraternal Accident Association of America v. Merritt

• Decision Date: 14 October 1921
• Parties: THE RED MEN'S FRATERNAL ACCIDENT ASSOCIATION OF AMERICA, a corporation of the State of Massachusetts, d. b. a., v. JOSEPH WILSON MERRITT, p. b. r
• Court: Delaware Superior Court

117 A. 284

32 Del. 1

THE RED MEN'S FRATERNAL ACCIDENT ASSOCIATION OF AMERICA, a corporation of the State of Massachusetts, d. b. a., v. JOSEPH WILSON MERRITT, p. b. r

Superior Court of Delaware, New Castle County

October 14, 1921

Superior Court for New Castle County, September Term, 1921.

Sum sur appeal from Court of Common Pleas, No. 114, January Term 1921.

Motion to strike out plea of statute of limitations. Motion refused.

Counsel for plaintiff below, respondent, filed the following written motion:

"And now, to wit, this 16th day of May, A. D. 1921, Joseph Wilson Merrit, the above named plaintiff below, respondent, by James I. Boyce, Esq., his attorney, moves the court here to strike from the record of the above-entitled cause the plea of the statute of limitations filed by the above-named defendant below, appellant, on the 11th day of April A. D. 1921, on the following grounds:

"(1) For that the said plea was filed after judgment by default in favor of the plaintiff below, respondent had been opened upon the application of the defendant below, appellant.

"(2) For that due and timely objection was made to the plea of the statute of limitations upon the opening of the said judgment.

"(3) For that it appears from the record that the said defendant below, appellant, is a corporation of the state of Massachusetts, and hence is not entitled to plead the statute of limitations. "

The motion to strike out the plea of the statute of limitations is denied.

William S. Hilles for defendant below, appellant.

James I. Boyce for plaintiff below, respondent.

HEISEL and RICHARDS, J. J., sitting.

OPINION0

RICHARDS, J.

This suit was originally brought in the court of common pleas in and for New Castle county, the service of the summons upon the defendant having been obtained by making service upon Thomas W. Wilson, then Insurance Commissioner of the state of Delaware. The plaintiff below obtained judgment for want of an answer in the sum of eight hundred and twenty-seven dollars and fifty cents ($ 827.50); which was opened two months later upon application of the defendant below, a hearing had before the court and judgment rendered for the plaintiff below. An appeal was then taken to this court by the defendant below and a plea of the statute of limitations entered.

Counsel for plaintiff below moved to strike out the plea of the statute of limitations for two reasons: first, that the plea was filed after judgment by default in favor of the plaintiff below had been opened, notwithstanding the fact that counsel for plaintiff below objected to the opening of said judgment because the plea of the statute of limitations might be pleaded; second, that the defendant below appellant, is a foreign corporation and consequently cannot avail itself of the plea of the statute of limitations.

The right of the court of common pleas to open the judgment given by default in favor of the plaintiff below is not questioned, but it is contended that on an appeal to this court from the judgment finally rendered by the court of common pleas, in favor of the plaintiff below, the defendant below, appellant, should not be allowed to plead the statute of limitations.

The statute creating the court of common pleas, being volume 29, c. 250, of the Laws of Delaware, provides that appeals may be taken from judgments rendered by said court to the Superior Court in the same manner that appeals are taken from judgments rendered by a justice of the peace. The right of either party to the suit on an appeal from a judgment rendered by a justice of the peace to this court, to plead the statute of limitations has never been denied so far as we know; on the contrary, this court has generally held that on an appeal to this court from a judgment rendered by a justice of the peace the case will be heard de novo, which gives the parties to the cause all the advantages of pleading to which they would have been entitled if the case had originated in this court. Waples v. Layton & Sipple, 3 Del. 508, 3 Harr. 508.

Is there, therefore, any reason why the defendant below, appellant, should at this time be denied the right to plead the statute of limitations? Counsel for the plaintiff below might well have argued that the statute of limitations could not have been pleaded after the judgment was opened in the court of common pleas, but this was not attempted.

In the case of Waples v. Layton & Sipple, 3 Del. 508, 3 Harr. 508, which was an appeal from a judgment rendered by a justice of the peace, to the Superior Court, where objection was made to the plea of the statute of limitations, the court said:

"The defendant has a right to plead the act of limitations on the appeal. This suit is precisely as if it had originated here and the respondent cannot refer to the record of the proceedings below, except to state how this case came here; and the date of the proceeding commenced below, in reference to the plea of limitation."

Admitting that the statute of limitations is not favored in this state, or regarded as a meritorious defense, nevertheless it may be pleaded as a defense, and the court cannot strike it out except for legal cause.

The cases of Burton v. Waples, 3 Del. 75, 3 Harr. 75; Waples v. M'Gee, 2 Del. 444, 2 W.W. Harr. 444; Lycoming v. Bush, 15 Del. 181, 1 Marvel 181, 40 A. 947; and Wright v. Wilmington City Railroad Co., 16 Del. 141, 2 Marvel 141, 42 A. 440--cited in the reply brief of the plaintiff below, respondent, do not appear to us to be in point, the question being raised on a motion to amend the pleadings, the right to grant which is placed by the Constitution in the discretion of the court.

The pleadings in this case disclose the fact that the Red Men's Fraternal Accident Association of America defendant below, appellant, is a foreign corporation, being incorporated under the laws of the state of Massachusetts; the pro narr, filed in this court, discloses the fact that it was, at the time the cause of action accrued, and prior thereto, engaged in the insurance business, and the return of the sheriff on the original writ issued out of the court of common pleas shows that it was served upon Thomas W. Wilson, the Insurance Commissioner of the state of Delaware. These facts being true, we are entitled to assume that the defendant below, appellant, had, before it commenced to do business in this state, complied with, and at the time this action was brought was still complying with, the provisions of the Insurance Department of this state with respect to insurance companies,...