Blodgett v. Hudson

29 Del. 462 | Del. Super. Ct. | 1917

Boyce, J.,

delivering the opinion of the court:

[1] It is true that the transcript of the docket entries filed in this case does not show that the oath required by the statute, before issuing a forthwith summons, was made; yet the transcript sent up is aided by having attached thereto the affidavit which was made as required by the statute, and also the summons with the return verified. The transcript does show that the defendant was served personally, and that he appeared on the day the summons issued; and also that on the same day the “plaintiff and defendant being present” the justice proceeded with the trial without objection on the part of the defendant, and gave judgment in favor of the plaintiff. Independent of the affidavit attached to the transcript, the appearance of the defendant, and the trial going on without his excepting to it, cured the defect relied on by the first exception. Bishop v. Carpenter, 1 Houst. 526.

[2] Rev. Code 1915, § 4028, requires the justice to make certain entries in his docket, among them being “the day of issuing-process and when it is returnable, the return, and in case of a. ‘forthwith’ summons the day of the return.” The transcript of the record in this case does not disclose the day of the return. Ordinarily the record is bad unless it show the return of the summons and the day of the return. But the summons here, duly verified and attached to the transcript of the record, does show return and day of return, being the day it was issued. On the same day the trial was had with the defendant present and judgment was entered. The record sent up shows a substantial compliance with the statute.

This court has held that a judgment for a certain sum with interest thereon from a date prior to the bringing of the action, without being ascertained and included in the sum for which the judgment is entered, is sufficient as for a sum certain. Robinson v. Fisher, 1 Boyce, 1, 74 Atl. 365, following Thomas v. Mariner, 5 Pennewill 571, 66 Atl. 99. Contra, the ruling in Etheridge v. Middleton, 1 Marv. 139, 40 Atl. 714. Carey v. Brinton, 6 Houst. 340, also referred to, seems inapplicable.

[3] Interest is allowable without being included in the statement of demand, although the amount of the judgment with, interest, as in this case, shall exceed the sum demanded.

The exceptions are overruled and the judgment is affirmed-