337 A.2d 321 | Del. Super. Ct. | 1975
OPINION ON MOTION OF DEFENDANTS TO VACATE OR FOR RELIEF FROM JUDGMENT
Plaintiff entered judgment against defendants in 1968 pursuant to warrant of attorney provision in a note executed by defendants. Defendants were not notified of the entry of judgment, and plaintiff took no action to recover on the judgment. Defendants first learned of the judgment upon having a lien search made in early 1974. They filed this action to vacate the judgment or for relief from the judgment pursuant to Rule 60(b).
There are various fact issues in dispute between the parties which would need to be resolved after hearing if the Court determines that there is a sufficient basis to proceed that far.
At the outset, it should be noted that the judgment was entered in 1968 pursuant to 10 Del.C. § 2306 and Rule 58(b) of the Civil Rules of this Court, as the statute and rule then existed. Thereafter, United States District Court for the District of Delaware, in Osmond v. Spence, D.Del., 327 F.Supp. 1349 (1971), considered the validity of the above statute and held that that statute in its then-form was unconstitutional and void. In a supplementary opinion, Osmond v. Spence, D.Del., 359 F. Supp. 124 (1972), the Court restated (at page 127) its holding that 10 Del.C. § 2306
Plaintiff argues that since 10 Del.C. § 2306 and Rúle 58C of the Civil Rules of this Court in their present form only provide for a hearing prior to execution upon a pre-1971 judgment,
In view of the above holding, it is unnecessary to consider whether sufficient grounds have been asserted for vacating the judgment or for obtaining relief from its effect under the grounds contemplated by Rule 60(b).
Accordingly, the matter will be set down for a hearing on the issue of whether defendants effectively waived their constitutional rights by executing the note.
It is so ordered.
. The critical date is July 9, 1971.
. The amended version of 10 Del.C. § 2306 deals only with the requirement that the opportunity for a hearing must be afforded a debtor against whom a pre-1971 judgment has been entered before execution can be taken. It does not preclude the possibility of an application for such hearing by the judgment debtor where no execution has been initiated by the judgment holder.