Tweed v. Lockton

• Decision Date: 29 July 1932
• Court: Delaware Superior Court
• Parties: BERTHA E. TWEED, widow of Robert W. Tweed, deceased, v. ALLEN LOCKTON

167 A. 703

35 Del. 474

BERTHA E. TWEED, widow of Robert W. Tweed, deceased, v. ALLEN LOCKTON

Superior Court of Delaware, New Castle County

July 29, 1932

Superior Court for New Castle County, Action on the case for negligence, No. 187, March Term, 1930.

Case heard on motion of the plaintiff's attorney to open the judgment obtained by her in the above entitled cause.

This suit was brought to recover damages for injuries to Robert W Tweed, resulting in his death, and sustained while riding in an automobile with the defendant, Allen Lockton. Service was obtained upon the defendant, Lockton, who not only failed to appear in response to the summons served upon him, but took no action, whatever, to defend the suit. In consequence thereof, judgment was entered against him for want of a plea. An inquisition was subsequently held and the amount due on said judgment was ascertained to be the sum of $ 25,000.

During the argument on the motion, it was disclosed that Lockton was insured by the Century Indemnity Company by a policy which provided, inter alia, that if judgment was recovered against the insured and not satisfied within thirty days, the insured, or his representative, might proceed against the company to recover the amount of said judgment. The policy was, also, subject to the following conditions:

"Immediate written notice of any accident, like notice of any claim like notice of any suit resulting therefrom, with every summons or other process, must be forwarded to the home office of the company or to its authorized agent."

It appeared that in December, 1928, an attorney-at-law representing the plaintiff, had notified the insurance company that he would bring suit on the claim to the January Term, 1928; that a suit was subsequently brought but service was never obtained upon the defendant and it was allowed to abate; that the present suit was then brought in which service was duly made and judgment taken for want of a plea as above stated, and the damages suffered by the plaintiff duly ascertained by a jury.

It, also, appeared that the insurance company never at any time received any notice that the two above mentioned suits had been brought.

The matter is now before the Court upon the plaintiff's motion to open the judgment and let the defendant into a trial.

The plaintiff assigns as her reasons why the judgment should be opened, that the said Allen Lockton is financially unable to pay the said judgment; that the Century Indemnity Company with which the said Allen Lockton has insurance protection to the amount of Five Thousand Dollars, has refused to admit its liability to the plaintiff under its policy because it claims it did not have notice of the pendency of the cause; and unless her said judgment is set aside and re-opened so that notice may be served upon said Century Indemnity Company of the pendency of the suit, she will be unable to recover any judgment in her favor for the acts complained of in her declaration.

Richards, Layton and Finger, appearing amicus curiae, opposed the motion for the following reasons:

1. "The Court is without power to open the judgment;"

2. "Plaintiff is guilty of laches in delaying its application;"

3. "The opening of the judgment would be of no advantage to the plaintiff for the reason that notice given hereafter would not constitute the immediate notice of suit brought as required by the terms of the policy."

The motion to open the judgment is refused.

John Biggs, Jr., for plaintiff.

Richards, Layton and Finger appeared as amicus curiae and opposed the motion.

PENNEWILL, C. J., HARRINGTON and RICHARDS, J. J., sitting.

OPINION

RICHARDS, J.

The inherent power of all courts of record to vacate or set aside their judgments or orders, during the term at which they are rendered, has long been recognized by the common law. In Volume 15, at page 688 of Ruling Case Law, the author in speaking of this power says: "It is based upon the substantial principles of right and wrong, to be exercised for the prevention of error and injury, and for the furtherance of justice." But it is equally well recognized by the common law, that in most cases this power of the courts to vacate or set aside their judgments or decrees does not extend beyond the term of court at which they were rendered, unless the proceeding for that purpose was begun during the term. United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129; Bassett v. United States, 9 Wall. 38, 19 L.Ed. 548; Cameron v. M'Roberts, 3 Wheat. 591, 4 L.Ed. 467; Sibbald v. United States, 12 Pet. 488, 9 L.Ed. 1167; People v. Chicago, P. & M. R. Co., 301 Ill. 135, 133 N.E. 710; Ladd v. Stevenson, 112 N.Y. 325, 19 N.E. 842, 8 Am. St. Rep. 748; Ex parte Brickell, 204 Ala. 441, 86 So. 1; Brown v. Clark, 81 Conn. 562, 71 A. 727; Kaufman v. Shain, 111 Cal. 16, 43 P. 393, 52 Am. St. Rep. 139; Maryland Steel Co. v. Marney, 91 Md. 360, 46 A. 1077; Com. v. Weymouth, 2 Allen (Mass.) 144, 79 Am. Dec. 776.

It is said by Lord Coke, in Co. Litt. 260 A.: "Yet during the term wherein any judicial act is done, the record remaineth in the breast of the judges of the court, and in their remembrance, and, therefore, the roll is alterable during that term, as the judges shall direct; but when the term is past, then the record is in the roll, and admitteth of no alteration, averment or proof to the contrary." A number of authorities can be found which hold that clerical or formal corrections or amendments of the judgment record, which are necessary in order to correctly express the action of the court, but making no change thereof, may be made any time, either before or after the term has ended. Montgomery v. Realty Accept. Corp. (C. C. A.), 51 F. (2d) 642; Walker v. Walker, 3 Harr. 502, is also in that class. See, also, U. S. v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129.

Judge Woolley affirms the general common law rule in his work on Delaware Practice, in Volume 1, under Section 838, but makes the following comment in reference thereto: "In this jurisdiction the common law rule has been extended, and within certain restrictions, judgments by default may be opened and the defendants let into trial, and judgments may be opened to ascertain the amount due upon them, after the term in which the judgments are entered." The right to open judgments obtained by default is given by Section 4089 of the Code of 1915, which provides that if the defendant in such judgment, at or before the next term after such judgment was obtained, shall make an affidavit denying notice or knowledge of the suit before the judgment was rendered, and that he has a just or legal defense to the action, or some part thereof, the judgment shall be stricken and he will be allowed to appear. Section 4169 of the Code provides that, "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 defense to the whole or part of such cause of action, and setting forth the nature and character of the same; * * * Provided, that no judgment shall be entered by virtue of this section unless the plaintiff, * * * 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, * * * with an affidavit stating the sum demanded, and that he or they verily believe that the same is justly and truly due."

The second paragraph of this section further provides, that upon sufficient cause being shown, a judgment obtained in this manner may be opened by the court and the defendant let into a trial, after he has given security as required. These two sections of the Code furnish specific methods for opening judgments under certain circumstances and are in conflict with the general principle of the common law. A practice has grown up in this state, under which the Court will open a judgment and grant an issue to be tried by a jury to ascertain the amount due thereon. ^[1]

This is, at least, true where the petitioner relies on payments made prior to the entry of the judgment sought to be opened. In re Vandenburg, 1 W. W. Harr. (31 Del.) 192, 112 A. 830; White v. Osserman, et al., 16 Del. Ch. 39, 139 A. 761.

Under the early rule an attempt to abuse the process of the court by the issuance of an execution to collect the judgment was, apparently, necessary. Townsend v. Townsend, 5 W.W. Harr. 20; Staats v. Herbert, 4 Del Ch. 508 (516); Hickman v. Hickman, 3 Harr. 511. Whether, however, that limitation has always been regarded as necessary in the more recent cases is at least an open question. See City Loan System v. Nordquist, 5 W. W. Harr. (35 Del.) 371, 165 A. 341; Barnett v. Lynch, 1 Marv. 114, 40 A. 666; Derrickson v. Derrickson, 2 Marv. 281, 43 A. 170; Lofland v. McDaniel, 1 Penne. 416, 41 A. 882; Plunkett v. Dillon, 3 Del. Ch. 496, 509; Com. Realty Incorp. v. Jackson, 5 W. W. Harr. (35 Del.) 395, 166 A. 657.

By this proceeding the validity of the judgment is not questioned or any attempt made to vacate, or set it aside, the sole purpose being to determine the correct amount thereof. This practice is illustrated by the cases...