35 Del. 76 | Del. Super. Ct. | 1922
Article 4, Section 33, of the Constitution provides that the Registers of Wills in the several counties shall respectively hold the Register’s Court.in each county, and that “appeals may be taken from a Register’s Court to the Superior Court, whose decision shall be final.”
The method of taking the appeal seems to be a casus omissus of the statute.
The Courts of this state, however, were at an early date confronted, in appellate proceedings, with the same question here involved.
In Jeans v. Milford, 3 Harr. 48, and Dubree v. Pusey, 5 Harr. 421, the Superior Court held that two returns of “non est inventus” in an appeal from a Justice of the Peace, were equivalent to service of a citation.
In Vandegrift v. Page, 5 Harr. 439, the Court of Errors and Appeals held that two returns of “non est inventus” on a citation issued on a writ of error to the Superior Court were sufficient to enable the Court to review the judgment.
In Wiggin v. Massey, 27 Del. (4 Boyce) 482, 90 A. 40, the Court applied the same practice to certiorari to a Justice of the Peace, holding that on failure of personal service the Court would hear and determine the exceptions on two returns of non est inventus.
All of these cases recognize that while the right of appeal may be given by Constitution or statute, such right would become inoperative unless some such rule, as above indicated, was put in force, and consider a respondent practically within the jurisdiction of the Court, because of service or appearance to the proceedings below, and that two returns of non est inventus are equal to service (Woolley, Del. Prac. 1424, 1425).
