Sobolewski v. German

• Decision Date: 05 December 1924
• Citation: 127 A. 49,32 Del. 540
• Court: Delaware Superior Court
• Parties: BLANCH SOBOLEWSKI v. WALTER C. GERMAN

127 A. 49

32 Del. 540

BLANCH SOBOLEWSKI v. WALTER C. GERMAN

Superior Court of Delaware, New Castle County

December 5, 1924

Superior Court for New Castle County, May Term, 1924.

CAPIAS CASE, No. 116, May Term, 1924.

In this case it appears from the affidavit of the plaintiff filed with the praecipe that one William Sobolewski, the deceased husband of the plaintiff, on November 18, 1923, was walking on the public road from Wilmington to New Castle; that at said time he was run into by an automobile operated by the defendant and injured and from these injuries died within a few days. The affidavit asserts the negligence of the defendant in detailed terms and alleges that the death of the plaintiff's intestate was occasioned by the unlawful violence and negligence of the defendant and that no suit was brought by William Sobolewski during his lifetieme to recover damages for said injuries.

The suit was instituted as a capias ad respondendum and bail in the sum of $ 10,000.00 was required by the plaintiff.

The defendant has moved to quash and set aside the entire proceedings in said case including the writ of capias. Four reasons are assigned for the motion, the numerical order being herein somewhat changed as follows:

1. That the plaintiff in said affidavit does not allege that she has been injured or damaged in an amount exceeding $ 50.00.

2. That the plaintiff in said affidavit does not allege that she has been damaged in any amount whatsoever.

3. That the writ of capias ad respondendum was issued without an order of any court, or judge, in an action in case for unliquidated or uncertain damages.

4. That the affidavit is improper because it does not allege that the cause of action was "an injury to the person or property accompanied by violence to the party plaintiff but an injury to the person of a third party."

Writ of Capias ad Respondendum quashed and set aside.

William Prickett for plaintiff.

P Warren Green for defendant.

RICE and RODNEY, J. J., sitting.

OPINION

RODNEY, J.

The only material statutory provision regulating the commencement of actions by capias is Section 4093 of Revised Code of 1915. This act was originally passed March 3 1875 (volume 15, Laws of Delaware, p. 304) and the material portions are:

"No writ of capias ad respondendum shall be issued against any citizen of this state, in any civil action, unless the plaintiff therein * * * shall have made a written affidavit, and filed the same in the office of the Prothonotary of the Superior Court of the County out of which the writ is to issue, stating that, to the best of his or their belief, the defendant has absconded, or is about to abscond from the place of his usual abode; or that the defendant is justly indebted to the plaintiff, in a sum exceeding fifty dollars, and that he verily believes the said defendant has secreted, conveyed away, assigned, settled or disposed of, either money, goods, chattels, stock, securities for money, or other personal estate or real estate of the value of more than one hundred dollars with intent to defraud his creditors, and shall, moreover, in such affidavit, specify and set forth the supposed fraudulent transactions.

"Provided that this section shall not apply where the action shall be for libel, slander or injury to the person or property, accompanied by violence, if any affidavit of the cause of action be filed with the praecipe."

The cause of action in this case, arising ex delicto where the damages are necessarily unliquidated and uncertain in amount, makes the consideration of the first two grounds of the defendant unnecessary. There seems to be no question that, under proper circumstances, an action may be commenced by capias where the damages are unliquidated and uncertain, and in these cases no averment of an actual amount of damage can be given.

It is apparent, of course, that the cause of action in this case is embraced within the provision at the end of the statute above quoted as being "an injury to the person accompanied by violence," and that, under the terms of the statute itself, that act does not apply. This being true, we are left with no statutory regulation at all with which to chart our way, with nothing but the common law as modified by our practice. Under these circumstances a brief review of the astonishing and anomalous situation of the common law relative to writs of capias ad respondendum may not be improper or without interest.

At the earliest common law, when any person felt himself aggrieved, he sued out an original writ in chancery which concisely stated the substance of the cause. This writ was served by summoning the defendant to do justice or appear and answer the accusation. Before service of the writ the sheriff was compelled to take pledge or security from the aggrieved party or the plaintiff. Upon the return of the summons an attachment was issued to compel obedience to the writ. By it was attached whatever goods the defendant had. By this attachment and by distresses called distringas infinite the defendant in case he did not appear was gradually deprived of his property until he obeyed the writ, and when his property had been entirely consumed the law considered him incapable of making satisfaction.

Where, however, the injury was committed vi et armis, a different practice prevailed. In the then existing state of society an injury to the person or with force required more prompt and speedy relief than breaches of contract. Process by capias ad respondendum was provided against the defendant if he omitted obedience to the summons or attachment.

Gradually the indigent and fraudulent wrongdoers took such advantage of the immunity of their persons that the process by capias ad respondendum was enlarged to matter of contract. By 52 Henry III the remedy was extended to the old action of account, by 25 Ed. III to debt and detinue, and by 19 Henry VII it was provided "that like process be had hereafter in actions upon the case in any of the courts as in actions of trespass or debt."

By the passage of this last act all distinction between peaceable actions and those accompanied by violence, all difference between ex delicto actions and actions ex contractu was wiped out. The original writ and attachment fell gradually into disuse, and the pledges required of the complainant became the fictitious John Doe and Richard Roe. After the passage of 19 Henry VII a defendant was liable in all cases whatsoever to be arrested in the first instance by capias without any previous intimation of the justice of the demand, the nature of the injury or the extent of the loss sustained by the complainant.

The evils of the system of an almost uncontrolled power of arrest in civil cases continued for many years. By 12 George I, chapter 29 (1726), amended by 5 George II, chapter 27 (1732), made perpetual by 21 George II, chapter 23 (1748), it was provided that no one could be arrested upon a capias unless the plaintiff made and filed an affidavit that the cause of action amounted to ten pounds or upwards. The amount of the claim was indorsed on the writ and for this amount bail could be taken and no more. These acts requiring that the demand be certain and specific, it necessarily followed after their passage that no arrest could be made in a civil action without a judge's order for a cause of action arising out of a forceable injury or in any ex delicto action where the damage must necessarily be uncertain and incapable of arithmetical computation. We, therefore, see the anomalous situation that the only cause of action which originally justified the issuance of a capias became by virtue of the statutes the only cause of action upon which a capias could not be issued without the precedent order of a judge.

The English acts, just referred to, having been enacted after the settlement and colonization of this state, the question of their application to our jurisprudence becomes material. The Delaware Constitution of September 20, 1776, adopted upon our separation from England and organization into an independent state government, provides by Article 25:

"The common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this state, shall remain in force, unless they shall be altered by a future law of the Legislature; such parts only excepted as are repugnant to the rights and privileges contained in this Constitution and the declaration of rights, * * * agreed to by this convention."

The object of this clause was to secure to the people in their transition from a colonial to an independent political state a jurisprudence already complete and adequate immediately to define and to protect their rights of person and property without awaiting the slow growth of a new system to be thereafter matured by legislation and...