Harrison v. El Mundo Precioso, Inc.

416 A.2d 210 | Del. | 1980

PER CURIAM: Before McNEILLY, QUILLEN and HORSEY, JJ.

The defendant takes this appeal from an order of the Superior Court dismissing her appeal from the Justice of the Peace. The plaintiff brought this action in the Justice of the Peace Court seeking amounts allegedly owed under a lease with the defendant. The Justice of the Peace determined the defendant had improperly withheld prepaid rent and a security deposit, and awarded damages to the plaintiff.

The defendant filed a notice of appeal from this judgment six days later. 10 Del.C. § 9571 provides in part;

“(a) An appeal shall be allowed by the justice at any time within 15 days from the day of giving the judgment and not after, counting that day as one, upon the party entitled to the appeal or his agent or attorney praying it.

(b) The party appealing shall offer security in such sum as the justice deems sufficient to cover the judgment appealed from and the costs on the appeal.” However, the defendant did not post the required bond within the 15 day period. Compliance with § 9571 is a jurisdictional prerequisite to appeal from the Justice of the Peace. State ex rel. Caulk v. Nichols, Del.Supr., 281 A.2d 24 (1971). See, Warren Williams Co. v. Giovannozzi, Del.Super., 295 A.2d 587 (1972).

The defendant seeks to excuse her tardiness by placing a duty on the Justice of the Peace to inform an appealing party of the amount of the bond to be posted. She asserts that, because the amount is discretionary, the appealing party need not inquire about how much the bond will be. The Superior Court rejected this reasoning and so do we. The appealing party cannot excuse failure to comply with § 9571 by placing a duty on the Court of informing the appellant of the amount of the bond. See, Warren Williams Co. v. Giovannozzi, supra. Under § 9571, the appellant must inquire about the bond and post it within the 15 day period.

The defendant, by not posting a bond within the 15 day period, failed to comply with 10 Del.C. § 9571. Consequently, the Superior Court was without jurisdiction to hear her appeal.

AFFIRMED.