Jones v. Hinderer, 30 Del. 516

Jones v. Hinderer

30 Del. 516 | Del. Super. Ct. | 1920

Heisel, J.:

This is a rule to show cause why a judgment of this court entered upon a transcript from a justice of the peace docket should not be vacated and stricken from the record. The transcript discloses that the summons was issued on June 4, 1917, returnable June 9, 1917, and served personally on the defendant June 5, 1917. Defendant failed to appear and the justice of the peace gave judgment against him by default. After issuing an execution and return of nulla bona thereon the judgment was entered here.

[1-3] Counsel for plaintiff moved to dismiss the rule on the ground that the proper procedure was by certiorari, citing Wood v. Dickerson, 3 Pennewill 23, 50 Atl. 215, in which case it did not appear from the transcript that the service of the summons had been verified by the oath of the constable in writing, and the court said that a full copy of the whole record, such as would be sent up on certiorari, might cure the defect and, therefore, certiorari was the better procedure; but in Goldstein v. Steele, 3 Boyce 125, 80 Atl. 522, where lack of jurisdiction of the justice affirmatively appeared in the transcript, the court held the rule to show cause to be a proper procedure for vacating a judgment entered upon such transcript. In this case it appears by the transcript that the summons was served on the fifth day of June, returnable on the ninth day of the same month. The statute requires the service to be made “at least four day before the day of appearance.” Where the required service must be not less than a fixed number of days before the day of appearance, the service must be made at such time before the day of appearance as to allow the full number of days required between the service and appearance without counting either the day on which the service is made or the day for th.e *518appearance or return. 1. Woolley § 186; Robinson v. Collins, 1 Har. 498; Warrington v. Tull, 5 Har. 107; Chambers, Trustee, v. Jones et al., 1 Pennewill 209. 39 Atl. 1098; Content v. Addicks, 4 Pennewill 221, 57 Atl. 291.

It appearing from the record that service of the summons in this case was not made at least four days before the day of appearanee, as required by the statute, the justice did not have jurisdiction, and, therefore, the judgment and all proceedings thereon are void.

Let the rule be made absolute and the judgment vacated and stricken from the records of this court.