Wright v. Shaw
| Decision Date | 20 February 1963 |
| Parties | , 55 Del. 535 W. Dale WRIGHT and Lillian M. Wright and Wright Supply Co., Inc., a corporation of the State of Delaware, Defendants Below, Appellants, v. Edward A. SHAW, doing business under the name and style of Shaw Electric Co., Plaintiff Below, Appellee. |
| Court | Delaware Superior Court |
On motion of plaintiff below-appellee to dismiss appeal from a judgment rendered by a Justice of the Peace against defendants below-appellants. Motion denied.
Robert B. Walls, Jr., Wilmington, for defendants below-appellants.
Morton E. Evans, Wilmington, for plaintiff below-appellee.
The parties will be referred to herein and hereafter as Appellants and Appellee.
Appellee allegedly did certain electrical work for Appellants, providing labor and material in a structure in which Appellants maintained a shop. Appellants allegedly failed to make payments in full for this work and suit was filed by the Appellee before a Justice of the Peace. A hearing was had and the Justice of the Peace rendered judgment in favor of the Appellee and against the Appellants. The appeal to this Court followed.
The transcript of the proceedings below was filed by the Appellants in this Court. A summons on appeal was issued by the Prothonotary and appropriately served. A motion to dismiss the appeal was thereafter filed by Appellee. The grounds for the motion are as follows:
'1. The transcript of the proceedings below filed herein is incorrectly captioned, in that the names of the defendants below, appellants are incomplete. The correct caption of the case as filed before the Justice of the Peace is as follows:
'Edward A. Shaw, doing business under the name and style of Shaw Electric co.
v.
W. Dale Wright and Lillian M. Wright, his wife,
and
'W. Dale Wright and Lillian M. Wright, trading as Wright Supply Mfg. Co.
and
Wright Supply Co., Inc., a corporation of the State of Delaware
'2. The transcript of the proceedings before the Justice of the Peace filed herein does not reveal the names of the defendants against whom judgment was entered.
'3. The transcript of the proceedings before the Justice of the Peace filed herein reveals that W. Dale Wright and Lillian M. Wright, trading as Wright Supply Mfg. Co. appealed whereas the judgment was entered against W. Dale Wright and Lillian M. Wright as individuals and Wright Supply Co., Inc. so that W. Dale Wright and Lillian M. Wright trading as Wright Mfg. Co. show no right in themselves to appeal in that case.
'4. The transcript of the proceedings before the Justice of the Peace filed herein reveals that the signatures of the appellants and of the sureties were not under seal on the purported 'bond' which was filed herein.
The several grounds asserted why the appeal here should be dismissed have been considered and are disposed of as follows:
1. There is no merit in the first contention. The transcript as filed is captioned:
'W. Dale Wright and Lillian M. Wright his wife, and W. Dale Wright and Lillian M. Wright, trading as Wright Supply Mfg. Company
'Action of Assumpsit, Cause of Action, Breach of Contract for the Payment of Money, Demand Three Hundred Fifty Eight Dollars and Eighty Five Cents ($358.85) with interest.
'Summons issued to Special Deputy Sheriff Thomas S. Connell on July 8, 1958 and made returnable Monday the 14th day of July, A.D. 1958 at four-fifteen o'clock in the afternoon.
'Special Deputy Sheriff Returns: Served summons by leaving a copy personally with W. Dale Wright and Lillian M. Wright at their place of business which service is verified by the oath of the Special Deputy Sheriff in writing.
'The parties were advised of their right to take an appeal and of the time and manner in which an appeal must be taken.'
It does not appear from Mr. Evans' letter (Ex. A-1 to his brief) that there was any joint liability on the part of the defendants his clients sued. The Justice of the Peace rendered judgment against W. Dale Wright and Lillian M. Wright only; he rendered no judgment as to the corporate defendant. Some of the named defendants appealed, but the corporate defendant did not, and understandably so.
There is no rule of law requiring all persons named as defendants in an action to join in an appeal unless there may be joint liability, and hence there is no need to show in the transcript the name of the nonappealing defendants.
2. What I have said as to the first contention applies exactly to the second and no more need be said about this second contention. As a matter of fact the transcript clearly shows the names of those against whom judgment was rendered.
3. Appellee's third contention is not clear. The transcript shows entry of judgment on September 12, 1958 in plaintiff's favor against W. Dale Wright and Lillian M. Wright; it further shows that on '* * * the 19th day of September A.D. 1958, the said W. Dale Wright and Lillian M. Wright [as husband and wife and] trading as Wright Supply Mfg. Co., appeal and * * * become surety * * *'.
A judgment against a husband and wife will be a lien against property held by them jointly. There was no need for them to appeal in the name they conducted their business affairs as there was no separate entity. It was surplusage for them to appeal in both names. It can and should be stricken.
Their appeal is in conformity with the statute; consequently, I hold there is no merit in this third contention--particularly since the transcript has the 'Notice of and Prayer for Allowance of an Appeal' as a part of the transcript.
Appellee's contention about the other part of this third contention, i. e. that the record does not show the amount of the bond was approved by the Justice is equally not clear. I invite Mr. Evans, who appears for Appellee, to note the transcript. The amount of the bond is recited in the transcript--indicating the Justice of the Peace must have approved the amount. The statute and citation, Townsend v. Steward, 4 Harr. 94, are not at all apposite. Nor is Wooley on Delaware Practice, § 1433(c). There is no merit in this portion of this contention.
4. Appellee's fourth contention refers to 'the want of a seal' on the 'bond'.
I have minutely examined and studied at length the provisions of Title 10 Del.C. § 9579. Nowhere do I find the word 'bond' used in the statute--nor is there a direction that the surety or sureties 'seal' the 'security on appeal' as that term is set forth in and required by the statute.
I had occasion in State, for Use of Hartnett v. Wood et al. (Civil Actions No. 281 and 286, 1960 and No. 51 and 52, 1961 (January 26, 1962, Kent County), an unreported opinion, to make a thorough analysis of 'Statutory Bonds' and 'Bonds required by Statute'. I ruled in those cases that it was mandatory, where a statute prescribed the form of the bond or security, for the parties to follow the form prescribed by statute.
I consider this ruling as wholly applicable here and rule that since there was compliance with the statute there can be no basis for the contention advanced by Appellee. 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, otherwise the appeal will be subject to dismissal and the cited cases are wholly controlling. For the reasons stated I rule Appellee's fourth ground as wanting in merit.
5. Here, the Appellee seeks to dismiss the appeal because the transcript does not show the Seal of the Justice of the Peace; he cites and relies on 11 Del.C. § 5918; Superior Court Rule 3(c), Del.C.Ann.; Wooley on Delaware Practice, § 1433; Green v. Kinney, 2 Harr. 160 (1837); Lewis v. Hazel, 4 Harr. 470 (1847) and Hill v. Ableman, 1 Marv. 401, 41 A. 92 (1895).
The cases cited by Appellee have been very carefully analyzed; true it is they refer to the necessity of a seal of a Justice of the Peace on the transcript; further examination, however, reveals that these cases--and undoubtedly the citation from Wooley on Delaware Practice--were decided on the basis of prior Rules of this Court, adopted in 1836 or 1837, see 2 Harr. pages 161-166.
Rule 41 of such Rules required certification of a transcript to be made '* * * under the hand and seal of the...
To continue reading
Request your trial