S. & S. Builders, Inc. v. Eagle Truck Transport, Inc.
| Decision Date | 18 March 1957 |
| Citation | 50 Del. 346,11 Terry 346,130 A.2d 558 |
| Court | Delaware Superior Court |
| Parties | , 50 Del. 346 S. & S. BUILDERS, Inc., a Delaware corporation, Defendant Below, Appellant, v. EAGLE TRUCK TRANSPORT, Inc., a Pennsylvania corporation, Plaintiff Below, Appellee. |
Louis Goldstein, Wilmington, for plaintiff below.
David Snellenburg, II, Wilmington, for defendant below.
Plaintiff's motion to dismiss the appeal must be granted. Superior Court Rule 3(d), Del.C.Ann. requires that applications for the amendment of the transcript of docket entries be made on or before the fifth day after the filing of the praecipe and transcript. Since defendant failed to make any application whatsoever, the filing of the second transcript was a nullity. This forces us back to the first transcript which failed to show that the bond had been signed by a surety. 10 Del.C. § 9579(a) sets out a form of surety bond to be given in cases of appeals from Justices of the Peace to this Court. Subsec. (b) states that the entry of security shall be signed by the sureties or it shall be void. Since no surety signed the bond, it is, of course, void. Defendant seeks to excuse the defect by showing that, in fact, a cash deposit was made in lieu of a surety bond and that the transcript so shows. This will not do. Where the statute specifically provides for a surety bond on appeal, sets forth in exact words the type of bond required and fails to provide for a deposit of cash as an alternative, then it must be assumed that the legislature intended that a surety bond was the only proper means of affording security. J. R. Watkins Co. v. Guess, 196 Miss. 438, 17 So.2d 795; Ringgold v. Graham, Tex.Com.App., 13 S.W.2d 355; Culp v. Feyth, 138 Kan. 854, 28 P.2d 734.
The appeal must be dismissed.
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Gray v. State ex rel. Atty. Gen.
...where the pertinent statute or rule does not specifically authorize such a deposit.' (65 A.L.R.2d 1137) S. & S. Builders, Inc. v. Eagle Truck Transport, Inc., 50 Del. 346, 130 A.2d 558; Gordon v. Camp, 2 Fla. 23; Marks v. Waiahole Water Co., 36 Haw. 188; Beckwith v. Kansas City & Olathe Rai......
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Finley v. Pless
...dissent. 1 The cases cited in Gray are set out here with pertinent part of the statutes involved:S. & S. Builders, Inc. v. Eagle Truck Transport, Inc., 11 Terry 346, 50 Del. 346, 130 A.2d 558 (an appeal from a J.P. Court to Circuit Court and the statute sets out the Actual form of bond requ......
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Wright v. Shaw
...Tinley v. Frederick, 1 Terry 412, 40 Del. 412, 11 A.2d 329 (Super.Ct.1940) and compare S & S Builders, Inc. v. Eagle Truck Transport, Inc., 11 Terry 346, 50 Del. 346, 130 A.2d 558 (Super.Ct.1957) both hold that parties must follow the exact terms required by the particular statute, otherwis......
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Williams v. West
...of jurisdiction. Appellee's motion to dismiss should have been granted by the lower court. 3 See also, S. & S. Builders v. Eagle Truck Transport, Inc., Del.Super., 130 A.2d 558 (1957). In other states with similar appeal bond statutes, the overwhelming weight of authority is to the effect t......