Stanley G. Flag & Co. v. Taylor

• Decision Date: 03 May 1888
• Parties: STANLEY G. FLAG & CO. v. GEORGE W. TAYLOR et al
• Court: Delaware Superior Court

14 A. 26

13 Del. 165

STANLEY G. FLAG & CO. v. GEORGE W. TAYLOR et al

Superior Court of Delaware, Kent

May 3, 1888

SUMMONS case. Motion in the Superior Court of Kent County for judgment for plaintiffs on affidavit filed notwithstanding a counter affidavit. Judgment granted.

Chapter 106, Rev. Code, § 4, provides:

"In all actions in the Superior Court, upon bills, notes, bonds or other instruments of writing for the payment of money, or for the recovery of book accounts, on foreign judgments, and in all actions of scire facias on recognizances in the Orphans' Court and Court of Chancery, judgments or mortgages, judgment by default shall be entered upon motion by the plaintiff or his attorney on the last day of the regular term to which the original process is returnable notwithstanding appearance by the defendant, unless the defendant, or if there be more than one, one or more of them, shall have previously filed in the cause an affidavit stating that he or they verily believes or believe there is a legal defence to the whole or part of such cause of action, and setting forth the nature and character of the same; if the defense be to a part only of the cause of action, the defendant, or if there be more than one, any one or more of them shall, in such affidavit, specify the sum which he or they admits or admit to be due, and judgment shall be entered for the plaintiff at his election for the sum acknowledged to be due: Provided, That no judgment shall be entered by virtue of this section, unless the plaintiff, or if there be more than one, some one or more of the plaintiffs shall, on or before the first day of the term to which the original process is returnable, file in the office of the prothonotary a copy of the instrument of writing, book entries, or claims or in case of a scire facias, a certified abstract or transcript of the judgment, or mortgage, or recognizance, and in case of a suit on a foreign judgment a copy of said judgment, certified to under the Act of Congress passed May 26, 1790, with an affidavit stating the sum demanded, and that he or they verily believe that the same is justly and truly due. * * * *

The plaintiff filed a copy of promissory note (the cause of action), and affidavit, fulfilling the requirements of the statute. The defendant filed the following counter affidavit:

STATE OF DELAWARE, Kent County, ss.

Be it remembered, That, on this 28th day of April, A. D., 1888,...