Venetsianos v. Tamasoff

• Decision Date: 21 February 1938
• Court: Delaware Superior Court
• Parties: WILLIAM VENETSIANOS, Defendant Below, Plaintiff in Error, v. SAM TAMASOFF, Plaintiff Below, Defendant in Error

197 A. 385

39 Del. 180

WILLIAM VENETSIANOS, Defendant Below, Plaintiff in Error, v. SAM TAMASOFF, Plaintiff Below, Defendant in Error

Superior Court of Delaware, Kent County

February 21, 1938

Superior Court for Kent County, No. 10, July Term, 1937.

Writ of Certiorari to Charles C. Shorb, a Justice of the Peace in and for Kent County.

The judgment is affirmed.

Ernest V. Keith for Defendant Below, Plaintiff.

John B Hutton for Plaintiff Below, Defendant.

RICHARDS J., sitting.

OPINION

RICHARDS, J.

This proceeding was taken to reverse a judgment in favor of Sam Tamasoff, plaintiff below.

The reasons relied upon are, that the record does not show that the writ of summons stated the place for the defendant's appearance; that the record does not show that the writ of summons stated the year in which the defendant was to have appeared; that the record does not show that the Justice entered on his docket the nature of counterclaim pleaded by the defendant below in the form of a set-off.

The first two reasons assigned for reversing the judgment are practically the same, as they take exception to the failure of the writ of summons to state the time and place of the defendant's appearance. The function of a writ of summons served upon the defendant in a suit instituted before a Justice of the Peace, is to notify him that the action has been started against him, and to give him an opportunity to appear and defend the same if he cares to do so. In order to fully notify the defendant, such a writ should state the place where he is to appear and the time when he is to appear. When the writ fails to contain this information, a judgment rendered against the defendant in his absence would certainly be reversible. But when the defendant appears at time and place fixed for the hearing, notwithstanding the fact that the time and place of hearing was not set forth in the writ served upon him, he is in a position to defend the suit if he desires to, and that is the real purpose of the writ of summons. By the appearance of the defendant at the hearing before the Justice of the Peace, everything was accomplished which could have been accomplished if time and place of hearing had been included in the writ of summons. This being true, the defendant's appearance certainly cured these defects in the writ. Our Courts have so held in a number of cases and there is no reason for changing this ruling. Lewis v. Hazel, 4 Del. 470, 4 Harr. 470; Jester v. Lekite, 5 Del. 19, 5 Harr. 19; Blodgett v. Hudson, 6 Boyce (29 Del.) 462, 100 A. 571.

The next exception, namely, that the record does not show that the Justice entered on his docket the nature of counter-claim pleaded by the defendant below in the form of a set-off, brings up a practically new question.

The doctrine of set-off originated in equity, and it was recognized in Courts of Equity long before statutes were passed permitting set-off in courts of law.

The Delaware statute permitting this procedure is found in Section 4500 of the Revised Code of 1935,...