Yerkes v. Dangle

• Decision Date: 30 April 1943
• Citation: 33 A.2d 406,42 Del. 362
• Court: Delaware Superior Court
• Parties: BERNHARDT W. YERKES v. CARL DANGLE, who was sued with Joseph Taylor

33 A.2d 406

42 Del. 362

BERNHARDT W. YERKES v. CARL DANGLE, who was sued with Joseph Taylor

Superior Court of Delaware, New Castle County

April 30, 1943

Superior Court for New Castle County, No. 78, May Term, 1942.

Application by the defendant that he be permitted to appear in this action and make defense, or that the judgment entered therein be stricken off, or that the judgment be reformed so that it shall be a judgment for costs against the defendant, or for other or further relief as may be proper.

The original summons was issued on April 1, 1942, returnable to the ensuing May Term. The sheriff in his return on the writ certified that he had summoned personally Carl Dangle, on April 10, 1942.

On May 25, 1942, the plaintiff filed his declaration and the defendant was regularly ruled to plead thereto. No appearance was entered for or by the defendant at the said May Term, or at any time subsequent thereto, nor has he pleaded to the declaration pursuant to the rule.

At the subsequent November Term, namely, on November 11, 1942, on motion of the plaintiff's attorney judgment was entered against the defendant for default of an appearance, and it was then ordered by the Court that the amount thereof should be ascertained by inquisition at bar. During the present March Term, it being the second term next after the entry of the default judgment, the amount of the judgment was on March 17, 1943, ascertained by inquisition at bar, and on April 15 1943, the present application was made. The reason upon which the defendant relied in support of his application was that "Said defendant * * * denies notice or knowledge of this suit before said judgment was rendered, and alleges that there is a just and legal defense to said action * * *."

The defendant in his affidavit averred in substance that in April, 1942, a deputy sheriff read a paper to him to the effect that the plaintiff had begun an action against him and Taylor and that he should appear on May 4; on May 4 he went to the Court of Common Pleas, and was told there that there was no suit pending against him, he then went to the Superior Court Room, and was told there that there was no action involving him coming up that day, and that he should go to the Sheriff's office; in the Sheriff's office he was directed to the Prothonotary's office, where he was told by an official there that there was no action pending against him and that he should go home and forget about it; that the next thing he knew about the action was when he learned that on March 18, 1943, there had been a notice in the newspaper to the effect that judgment had been entered against him in this case. The defendant also in his affidavit set out with particularity the nature and character of his defense.

The plaintiff does not deny the allegations in the defendant's affidavit, so for the purpose of his application they will be accepted as true.

Attached to the defendant's affidavit, and made a part of his application, was a copy of a letter addressed to him by the plaintiff's attorney, under date of September 2, 1942 whereby the defendant was notified that the suit in question was pending in the Superior Court in New Castle County, and that no appearance had been entered on his, the said defendant's, behalf; that the case was for trial at the November Term of Court; that unless appearance was entered for him, judgment would be given against him by default, and suggesting that if he was unwilling to have such a judgment entered against him, to contact the office of the plaintiff's attorney not later than October 1.

Joseph D. Craven for the plaintiff.

William Prickett for the defendant.

SPEAKMAN J., sitting.

OPINION

SPEAKMAN, J.

The judgment in this case was entered pursuant to the authority of the first paragraph of Section 4580 of the Code of 1935, which provides that: "If the defendant in a writ of summons, shall not appear at the return day thereof; and it shall appear by the return that he was duly summoned, it shall be lawful for the plaintiff, having filed his declaration, to take judgment thereon for default of appearance, according to the rules and practice of the court."

The second paragraph of said Section, and also Section 4279 of the Code require some consideration in connection with the defendant's application.

The second paragraph of Section 4580 also provides as follows: "But if the defendant shall, at or before the next term after such judgment, by affidavit deny notice, or knowledge, of such suit before the judgment was rendered, and shall allege that there is a just, or legal, defense to the action, or some part thereof, such judgment shall be taken off and he shall be permitted to appear; any execution which may have been issued thereon to remain cautionary."

The provisions of Section 4279 are as follows: "The Judges who give any interlocutory judgment, shall, on motion, make an order, in the nature of a writ of inquiry, to charge the jury attending at the same, or next Court, to inquire in open Court, of the damages and costs sustained by the plaintiff in such action, and return their inquisition; whereupon the Court may proceed to judgment."

The defendant contends that when Section 4580 refers to "at or before the next term after such judgment" as the time within which the defendant must move to have such judgment taken off, it is referring to the final judgment, which is the only real judgment in the proceeding. With this I cannot agree. The judgment referred to is the judgment entered pursuant to the provisions of Section 4580. It may be either interlocutory or final. In the present case the action sounds in damages, therefore the judgment entered pursuant to said Section was interlocutory: that the plaintiff sought to recover his damages. 1 Tidd. 568; Black on Judgments, Sec. 28. See, also, Daniel v. Cooper, 7 Del. 506, 2 Houst. 506; Citizens' Loan Ass'n v. Martin, 15 Del. 213, 1 Marv. 213, 40 A. 1108.

There is another reason why the second paragraph of Section 4580 is not pertinent. In the case of Brown v. Philadelphia, W. & B. R. Co. (C. C. Del. 1881) 9 F. 183, cited by our Supreme Court in Miles v. Layton, 8 W. W. Harr. (38 Del.) 411, 193 A. 567, 112 A. L. R. 786, Judge Bradford correctly held that said paragraph of said Section 4580 (then Sec. 3, Ch. 102, Rev. Code 1874) was intended to cover only the situations where the Sheriff had returned that the defendant had been served, when, as a matter of fact, this was not the case, and a judgment by default had been entered against the defendant.

In the present...