Morgan v. Ownbey, 29 Del. 379

29 Del. 379 | Del. Super. Ct. | 1916

Pennewill, C. J.,

delivering the opinion of the Court in Banc:

On December 23, 1915, a writ of foreign attachment was issued against the defendant at the suit of the plaintiffs, and the sheriff was directed, by indorsement on the writ, to summon as garnishee the Wooten Land and Fuel Company, and to take bail in the sum of two hundred thousand dollars. The writ was issued on the filing of the usual affidavit prescribed by the statute in such cases, viz.: That the defendant was indebted to the plaintiff in a sum exceeding fifty dollars, and that the defendant resided out of the State of Delaware.

The sheriff’s return shows that he attached all the shares of the capital stock of said corporation, with all the rights thereunto belonging, and received from the directors a certificate, made part of the return, showing the number of shares held or owned by the defendant to be thirty-three thousand three hundred and twenty-four and one-third.

On January 17, 1916, a narr. was filed by the plaintiff, and rule pleas by the first general rule day in February. The declaration contained the common counts. There was no bill of particulars filed, but simply the date and amount of indebtedness.

On March 2, 1916, counsel for the defendant, for the purpose and with the intent of entering an appearance for the defendant wrote their names opposite the name of the defendant where it appears in the statement of the case on the appearance docket of the court, and later on the same day delivered to the Prothonotary a paper writing containing defendant’s pleas to the declaration of the plaintiff. This paper was marked “Filed” by the Prothonotary, who also made the following entry in said appearance docket:

“March 2, 1916. Defendant pleads, with copy, non assumpsit, statute of limitations, payment. Rule reps, and issues by second rule day in March.”

On March 13, 1916, a written motion was made and filed by plaintiffs’ counsel, asking that the appearance of defendant’s counsel and the entry thereof made by the Prothonotary be stricken out, and that said paper writing containing what purported tobe pleas in said case, be stricken from the files of this court.

These are the material and undisputed facts in the case.

On March 14, .1916, counsel for the defendant filed a paper in the nature of an answer to the motion of the plaintiffs, which in substance is as follows:

That said company, while a corporation of this state has never been engaged in business here—all its business and activities being in the States of Colorado and New Mexico. That the defendant is a resident of Colorado, and that the stock attached in this case constitutes substantially all of his property.

That a receiver has been appointed for said company by the United States District Court in Colorado, and the market value of said stock has been thereby temporarily destroyed, although in fact of great value, so that the defendant has found it impossible to secure the required bail to procure the discharge of his shares of stock from attachment.

That the defendant has a good defense to the whole of any cause of action stated in said suit, the nature of which is that there exists no indebtedness whatsoever due to the said plaintiffs from the said defendant either at this time or at the time said suit was instituted.

That the entry of bail for the discharge of property .seized under a writ of foreign attachment is not a necessary prerequisite for the entry of appearance by the defendant.

That the entry of appearance by the defendant may be made without disturbing the seizure of property thereunder, or its security for any judgment finally entered in the suit.

That the purpose of the writ of foreign attachment is twofold, to wit: To compel the appearance of the defendant, and to devote or apply the value of the property attached to any judgment obtained in this action.

Where, in any case, appearance has been entered by the defendant, and pleas filed, no judgment can be entered until the trial of the issue so raised.

That under our foreign attachment statutes only those corporations that are doing business in this state can be summoned as garnishees.

If the statutes of this state relating to foreign attachment cannot be construed so as to permit appearance and defense in a foreign attachment case without entering bail or security for the discharge of the property attached, then such statutes are unconstitutional under the first section of the Fourteenth Amendment of the Constitution of the United States, in that they deprive parties defendant, in cases brought thereunder, of their property without due process of law.

That such statutes are also unconstitutional because they make an arbitrary, unreasonable and illegal classification of the persons affected by them.

To require the defendant to give bond in the sum of two hundred thousand dollars to procure the dissolution of said attachment and the release of the shares of stock attached, as a condition precedent to the allowance of an appearance and entry of pleas in bar by the defendant, is oppressive, unreasonable, and in violation of fundamental principles for the administration of justice.

Such is substantially the argument of counsel for the defendant, as contained in their brief.

The plaintiffs dispute, practically, every contention made by the defendant, and insist that he is not in court and cannot make any motion or defense because there can be no appearance in the case without entering special bail.

They rest their case upon the language of the statute and the uniform practice thereunder, for more than a hundred years. They claim that never, before the present case, has any one contended that an individual defendant could appear in a foreign attachment case without entering special bail. And, it is argued, while there is no express inhibition in the statute against it, the implication is as strong and conclusive as an express inhibition would be. Not only does the providing of one means of appearanee exclude any other, but the effect of appearing without entering special bail would take from the plaintiff every advantage of the attachment, and certainly the Legislature did not intend that the statute should be so construed. If an appearance is entered without giving special bail the action becomes, from that moment an action in personam and is no longer an action in rem; and it is further contended that any judgment recovered in the case after such appearance would be a general judgment, and the lien of the attachment lost. It is not conceivable that the defendant can by simply entering an appearance, deprive the plaintiffs of every advantage gained by their attachment.

The plaintiffs claim that a judgment cannot be entered after the second term, and this being the second term an appearance and trial would cause a continuance and make it impossible to recover any judgment at all under the statute. It is also claimed that the statute, which provides that corporations doing business in this state may be summoned as garnishee, has no application to this case.

To the contention of the defendant that if an appearance cannot be entered without giving special bail, the statute is unconstitutional under the Fourteenth Amendment of the Constitution of the United States, because it deprives parties defendant of their property without due process of law, the plaintiffs reply, that the defendant is not deprived of an opportunity to make his defense. Under the statute he may appear and defend the action by giving security to the value of the property attached. This, it is argued, is not an arbitrary or unreasonable requirement, but it is in fact the law of the land in many actions in rem.

We have stated substantially the plaintiffs’ argument as made in the case.

It is probably true, as plaintiffs aver, that never before has any one contended that there could be an appearance in a foreign attachment suit against an individual without entering special bail.

This fact does not prove that such an appearance cannot be made, but it is of much significance, and necessarily has some weight with the court. But conceding that the practice has been long and uniform, the defendant argues that the question raised in this case has never been raiséd before, and that, therefore, it is a new question before the court. Moreover, the defendant says: A case like the present one has never been presented to the court before. The only distinguishing feature, however, is that the amount of bail required is so large that it is impossible for the defendant to furnish it. We cannot regard that fact as sufficient to distinguish this case from others, because in every foreign attachment suit the ability of the defendant to furnish the security required to discharge the attachment depends very largely upon his financial condition. It might be as difficult and impossible for one person to give a small bond as for another to furnish a large one. The large amount of bail required in this case cannot, therefore, take it out of the general rule.-

[1] The court áre clearly of the opinion that in a foreign attachment suit against an individual, there can be no appearance without entering special bail; indeed, the entering of bail constitutes defendant’s appearance. Defendant has produced no case in conflict with this conclusion; and while his reasoning based upon the language of the statute and the rights of defendants, is strong, it is not convincing.

This case involves a construction of a statute of our own state, and cases from other jurisdictions cannot be of much assistance to the court in any event.

The defendant argues that the statute has a twofold aspect, viz.: (1) To compel an appearance; and (2) to give the plaintiff a lien on the property attached for the payment of his claim.

While we think the purpose of the statute was to accomplish both of those things, we do not think the two things are separate and independent. The one must be dependent on the other, for otherwise entering an appearance would destroy the lien and advantage of the attachment. Surely the Legislature did not contemplate such a result.

The defendant insists that an appearance would not necessarily discharge the attachment, but we are wholly unable to agree to that proposition. He admits that an appearance by the defendant would change the action from one in rem. to one in personam. If that be so then it must follow that the attachment which exists because the action is in rem is lost when the action becomes an ordinary personal action, unless the lien is saved by a provision such as is found in our statute respecting foreign corporations. That statute has been cited in support of defendant’s argument that the lien of the attachment would remain even if there is a general appearance. But it seems to the court that such an inference is unwarranted because the fact that the attachment is saved by the language of the act respecting foreign corporations, even though there is an appearance, indicates that it would not be saved, in case of appearance, by the act respecting individuals which contains no such language.

But in case of appearance without giving security, any judgment recovered by the plaintiff.would be a general judgment, and for that reason also the lien of the attachment would be lost. It is hardly arguable that such a judgment, or an execution issued thereon, would be a special lien on the property seized under the attachment.

The defendant seeks to meet this objection by citing two foreign attachment cases decided by this court in which, upon motion, the judgment obtained by the plaintiff was opened and the defendant let into a trial. But it is to be noted that in those cases judgment had been recovered, and permitting the defendant thereafter to disprove plaintiff’s claim if he could, did not in anywise affect the lien of the judgment recovered in dase the defendant failed in his defense. The lien on the property attached would, in that event, continue. In the two.cases referred to the court evidently treated the judgment recovered as a judgment by default, and embraced within the provisions of another statute of the state which permits the court to open a judgment given by default in a summons case, and let the defendant into a trial, provided it is shown that he has a legal defense, and had no knowledge of the suit before the judgment was recovered. Revised Code, § 4089.

The court, in those two cases, acted either upon the belief that a judgment recovered in a foreign attachment suit was a judgment by default within the meaning of said act, or proceeded in analogy thereto, and with the conviction that the court had the power, in the interest of fairness and justice, to afford the defendant an opportunity at some stage of the case to make a defense to. the action, if he previously had no knowledge of the proceeding against him. And the court was also influenced, no doubt, by the thought, that permitting the defendant to make a defense would not prejudice or injure the plaintiff if the lien of his judgment was not affected.

Without expressing any opinion upon the correctness of the court’s action in the cases referred to, or indicating what the court might do, after judgment, in a foreign attachment case where it clearly appears that it was not possible for the defendant to furnish the bail required, we say, that the action of the court permitting the defendant in a foreign attachment case to make a defense after judgment has no bearing on the question whether he can appear before judgment without entering special bail.

Another objection made to an appearance in this case is that a trial would necessarily cause a continuance of the case and prevent the plaintiffs from recovering any judgment under the statute. The language of the statute requires that judgment shall be given at the second term if special bail is not entered. We do not decide that the court would not have the power to enter judgment after the second term, if for any reason the case had to be continued, but we do say that under the peremptory terms of the statute it is very doubtful, and such has been the general opinion of the bar for a long period of time.

The defendant claims that inasmuch as the plaintiffs filed a declaration in the case and ruled pleas, he had a right to appear and plead to such declaration.

It was stated by counsel for the plaintiffs that the declaration was filed out of abundant caution in view of the recent statute and new rules in relation to pleading. Whatever induced the plaintiffs to file the declaration, it is certain that the fact it was filed cannot change the meaning and effect of the statute.

[2] The defendant contends that, even if his appearance and pleas should be stricken off:

"The court would be without jurisdiction because it appears from the sworn statement of fact filed in the case that the Wooten Land and Fuel Company, the garnishee, while a coiporation of the State of Delaware, is not now doing, and never has done, business in this state.”

It is true that Section 4120 of the Revised Code provides that:

“All corporations doing business in this state, except banks,” etc., “ * * * are subject to the operations of the attachment laws, * * * as provided in the case of individuals, * * * and said corporations shall be liable to be summoned as garnishee,” etc.

But the corporation was not attached in this case, neither was it summoned as garnishee. The stock of the defendant in the corporation was attached under Section 2009 of the Revised Code, which provides that:

“The shares of any person in any incorporated company, with all the rights thereunto belonging, may be attached for debt,” etc.

Under this statute the corporation is not attached or summoned as garnishee, but an officer of the company gives to the sheriff a certificate of the number of shares held by the debtor in such company. This is an old law, very general in character, and not at all inconsistent with, or limited in its operation by Section 4120, a much later act.

Attention may be called, in this connection, to another act Revised Code, Section 1986, which provides that:

“For all purposes of title, action, attachment, garnishment, * * * the situs of the ownership of the capital stock of all corporations existing under the laws of this state * * * shall be regarded as in this state.”

In view of these two statutes it is not necessary that the court should decide what is meant by the words of Section 4120, “doing business in this state;” and besides we fail to see that the statute making corporations doing business in this state liable to attachment can have any application to this case.

[3] In respect to defendant’s contention, that if there can be no appearance under the statute without entering special bail, the statute is in conflict with the Fourteenth Amendment of the Federal Constitution, in that it deprives the defendant of his property without due process of law, we say, that in our opinion the statute is not in conflict with said amendment. It does not deprive a defendant of the right and opportunity to make a defense to an action brought thereunder, but merely prescribes a condition to the exercise of such right. He may appear and make his defense provided he gives security to the amount of the property attached. The security required simply takes the place of the property the plaintiff, by his diligence, has already seized and there is nothing unreasonable in the requirement. It is the same thing that the defendant must do in other actions in rent. in order to make a defense. It is the law of the land in respect to such actions, and does not deprive the defendant of any right or property without due process of law. The requirement is not arbitrary or unreasonable, and is not different in principle nor greater than the defendant must meet in a distress for rent, other attachment, or in a capias ad respondendum.

The plaintiffs have failed, we think, to produce any case that is at all in conflict with our conclusion upon this point.

[4] We are also of the opinion that the statute is not unconstitutional because, as defendant claims, it makes an improper or illegal classification of persons to be affected by it. Little stress, or reliance apparently, was placed upon this point at the argument, and we think it unnecessary to discuss it.

The decision of the court, upon the whole matter, and after carefully considering the able and interesting argument of counsel, is that the statute in question is constitutional, and that in an action brought thereunder the defendant can appear only by entering special bail. This conclusion is supported by the great weight of authority. Indeed, we have seen no case to the contrary.

We have covered at sufficient length, we think, the points involved in this case. A discussion of all questions raised, commensurate with the elaborate arguments made by counsel, would unduly prolong this opinion.

It is ordered that the foregoing opinion be and it is certified to the Superior Court for New Castle County.

(Signed by the Judges.)

Whereupon the Superior Court, after reciting the then condition of the record, made an order as follows:

“It is ordered by the court that said attempted appearance of Ward, Gray and Neary, Esquires, for said defendant and the said docket entries made by the Prothonotary as aforesaid be stricken out, and that said paper writings containing pretended pleas and reply to plaintiffs’ motion, marked ‘Filed’ by the Prothonotary as aforesaid, be stricken from the files of this court; and

“It is further ordered that judgment for want of appearance, collectible only from the property attached, be entered in favor of the said plaintiffs and1 against the said defendant, and further that the amount of said judgment be ascertained by inquisition at bar.”

The amount was so ascertained at the succeeding May term. But before the amount of the judgment had been ascertained, security as required by the statute not having been given, counsel for the defendant presented a petition assigning reasons for opening the above judgment, being substantially the same assigned for opening final judgment hereinafter shown, and moved for a rule upon the plaintiffs to show cause why the judgment should not be opened and the defendant be permitted to appear and disprove or avoid the debt or claim of the plaintiffs. A rule was thereupon issued directed to the plaintiffs in the judgment, returnable on, etc. The time for return was subsequently enlarged to etc., and an order was made by the court directing the sheriff to serve the writ on the attorneys of record for the plaintiffs without prejudice as to the legality of service so made.

The return indorsed on the rule was as follows:

‘ ‘ Made known personally to Saulsbury, Morris and Rodney, Attys. May 18, 1916,” etc.

The attorneys for the plaintiffs petitioned the court for permission to appear specially for the purpose of moving to quash and set aside the return of the sheriff on the ground of illegal service. The prayer of the petition was granted. Motion was made to vacate said service, and also, without prejudice to the rights of the plaintiffs, that the petition to open judgment be stricken from the files of the court; that the rule be discharged in that the matters set forth in the petition were not sufficient to warrant the opening of the judgment, and that the order directing the issuance of the rule be vacated.

The questions of law raised by the motions were directed to be heard by the Court in Banc, and were so heard.

Argument for Defendant in Support of Petition to Open Judgment for Want of Appearance.

The judgment entered was not a final judgment but only a judgment by default, an interlocutory judgment as'•defined in Citizens' Loan Association v. Martin, 1 Marv. 213, 40 Atl. 1008.

The service of the rule upon the counsel for the plaintiffs is due service in this case. It may well be doubted whether any formal service was necessary. Notice to or knowledge of the attorney for the plaintiffs would seem to be all that ought to be required of any application in a pending cause.

In the two statutory provisions which contemplate the opening of judgments, Sections 4089 and 4169, Rev. Code 1915, no form of notice is prescribed. These provisions apparently deal with essentially final judgments.

Rule 6 of the Superior Court seems to elevate notice upon counsel for matters in a pending cause as the regular and not the exceptional modes of service. 1 Woolley on Del. Prac., § 219.

Section 3730, Rev. Code 1915, confers upon the Superior Court, power to make rules. Under such a power the court might, as it did in the present instance, prescribe the service of the rule upon the attorney of record of the nonresident parties plaintiff, represented by responsible counsel of record who is still engaged in prosecuting the cause which has not yet reached final judgment.

Courts have not generally found any real difficulty in directing service of rules or processes upon the attorney of record for the plaintiff, upon application to open judgments, even though such judgments may have been pro forma entered as final judgments, and they have exercised such power without any statutory authority, by virtue of their common law powers, and for the purpose of conserving the ends of justice, where the plaintiffs are nonresidents. Beach v. Beach, 6 Dak. 371, 43 N. W. 701; Pick v. Glickman, 54 Ill. App. 646; 30 Cent. Dig. § 749 title “Judgments”; Phelps v. Heaton, 79 Minn. 476, 82 N. W. 990; Merriam v. Gordon, 17 Neb. 325, 22 N. W. 563, 565; Branch v. Walker, 92 N. C. 87; 30 Cent. Dig. § 749, title “Judgments”; Yorke v. Yorke, 3 N. D. 343, 55 N. W. 1095, 1097; Sturgiss v. Dart, 23 Wash. 244, 62 Pac. 858, 861; Dane v. Daniel, 28 Wash. 155, 68 Pac. 446, 449.

Said Sections 4089 and 4169, Rev. Code 1915, cover two cases under which proceedings may be had to open judgments, which would be final if they were left undisturbed.

Section 4089 prescribes particularly averments in the affidavit of application denying notice, etc., and a just and legal defense. Section 4169 requires the averment of a sufficient cause and imposes the giving of security for the payment of the judgment, interest and costs, which the plaintiff may finally recover.

The general power of the court to control its judgments during the term of their rendition, or during all stages of a cause to the rendition of a final judgment, are left wholly unregulated by statute.

That the Superior Court has a much more extensive control over its judgments than is defined in either of the statutes cited is apparent from an inspection of the Delaware Reports. To illustrate with a few instances: Lofland v. McDaniel, 1 Pennewill, 416, 41 Atl. 882; Woodward, Baldwin & Co. v. Arlington Mills, 2 Pennewill, 188, 44 Atl. 620; Janvier v. Culbreth, 5 Pennewill, 505, 63 Atl. 309.

Courts of general jurisdiction have an inherent power, essential to such jurisdiction, to open or vacate judgments, and do not depend for such power upon a statute. A statute covering certain phases of the power has no operation to limit the powers of the court in this behalf. 1 Black on Judgments, § 297.

Numerous cases support the same doctrine. Kemp v. Cook, 18 Md. 130, 79 Am. Dec. 681, 694; Bradley v. Slater, 58 Neb. 554, 78 N. W. 1069; Donnelly v. McArdle, 14 App. Div. 217, 219, 220, 43 N. Y. Supp. 560; Kiefer v. Grand Trunk R. R. Co., 55 Hun. 604, 8 N. Y. Supp. 230; Ladd v. Stevenson, 112 N. Y. 325, 19 N. E. 842, 8 Am. St. Rep. 748.

The petition of the defendant and rule to show cause have been judicially determined in this state to be the proper procedure for moving to open a judgment by default in a foreign attachment case. In re Levy, 3 Pennewill, 5, 50 Atl. 540.

The judgment under consideration is an interlocutory judgment. The control of a court over interlocutory judgments at any time before final judgment is plenary. The motion to open such a judgment need not be made at the term of the entering of such interlocutory judgment, but may be made at any time before final judgment. 1 Black on Judgments, § 308; Kitchen v. Strawbridge, 14 Fed. Cas. 692, No. 7,854; 4 Wash. C. C. 84; Starke v. Woodward, 1 Nott & McC. (S. C.) 259; Hastings v. Cunningham, 35 Cal. 549; Mowatt v. Cole, 59 Ill. App. 345; Matthews v. Cook, 35 Mo. 286, 289; Burnes v. Burnes, 61 Mo. App. 612; 30 Cent. Dig. § 300, title "Judgments”; Blythe v. Hinckley, (C. C.) 84 Fed. 228, 239.

Where, from the circumstances of the case, the court are in doubt whether the judgment should or not be opened, such doubt should be resolved in favor of the motion. Black on Judgments, § 354; Vermont Marble Co. v. Black (1894) 4 Cal. Unrep. Cas. 901, 38 Pac. 512, 961; Watson v. San Francisco, etc., R. Co., 41 Cal. 17, 20; Westphal v. Clark, 46 Iowa, 262, 264; Hull v. Vining, 17 Wash. 352, 49 Pac. 537, 539; Mason v. McNamara, et al., 57 Ill. 274, 277.

This application is directed to the equitable powers and discretion of the court. Plunkett v. Dillon, 3 Del. Ch. 496, 509, 510; Townsend v. Townsend, 5 Harr. 20; Hickman’s Adm’r. v. Hickman, 3 Harr. 511, 512.

That the Superior Court has equitable powers appears from statutory and constitutional provisions. Section 3726, Rev. Code 1915; Article IV, Section 24, of the Constitution of 1897.

What equitable powers are, as distinguished from the general powers of a court of law, are very clearly summarized in 1 Pomeroy’s Eq. Jur. § 67.

The injustice or prejudice to the rights of the party moving to open the judgment constitutes the basis for the exercise of the equitable powers or discretion of the court, which is unlimited. 1 Black on Judgments, § 318.

The Superior Court has never refused to exercise its equitable power and discretion upon a motion to open the default judgment in a foreign attachment and let the defendant in to disprove the amount of the indebtedness. Taylor v. Rossiter, 6 Houst. 485; In re Warthman, 4 Pennewill 319, 55 Atl. 6; In re Levy, 3 Pennewill 5, 50 Atl. 540.

In these cases it is true there was an element of surprise which is absent from the present case, so far as notice of the pend-ency of the action is concerned.

The facts in the present case must appeal with as much strength to the equitable and discretionary powers of the court as in those mentioned. The nature of the defense is that no sum of money whatsoever is due from the defendant to the plaintiffs. The hardship of this case is clearly equal to that of either of the cases in which the court has acted favorably. Such hardship is accented by the fact that the plaintiffs, by pending proceedings against a corporation, the defendant’s stock in which constitutes the property seized under this attachment, have destroyed for the time being the value of the stock as a means of furnishing security for the bail required.

It may be urged that the plaintiffs cannot carry away the proceeds of the sale of capital stock so seized without giving a bond, and that the defendant has the right, within a year after the giving of such bond, to appear and disprove the indebtedness of the defendant to the plaintiffs. Under the conditions existing and with the certainty that the stock so sold under such conditions would be ruinously sacrificed, the right of the defendant to come in and disprove the indebtedness and take the proceeds of such sale, is a mere mockery.

Upon the former argument in this cause, the right of the plaintiffs to secure their judgment by defáult at the second term, or run the risk of never securing the same, constituted a strong leverage to impel the court not to interfere.

In the present situation, the judgment by default is secure and cannot be affected or menaced by the defense of the defendant against the debt claimed by the plaintiffs against him. In re Warthman, supra.

Opening a default judgment merely to let the defendant in to a defense does not destroy its lien; the lien continues for the statutory period. 1 Black on Judgments, § 472.

The risk or danger to the plaintiffs, therefore, upon the granting of the motion to open this judgment, is substantially nothing. Balanced as against this secure position of the plaintiffs is the ruin of the defendant by the sacrifice sale of his property.

Here is an opportunity for the exercise of the indisputable equitable power of this court, so as to prevent the perpetration of an enormous injustice due to an archaic procedure sanctioned by our practice. Souerbry v. Fisher, 62 Ill. 135.

It may be advanced as a general principle, that without statutory authority to the contrary an executor can neither sue nor be sued qua executor beyond the sovereignty in which he was appointed. 1 Williams on Executors 429, and cases cited; Hopper v. Hopper, 125 N. Y. 400, 26 N. E. 457, 12 L. R. A. 237; Johnson v. Powers, 139 U. S. 156, 157, 158, 11 Sup. Ct. 525, 35 L. Ed. 112; Stacy v. Thrasher, 6 How. 44, 58, 12 L. Ed. 337; Noonan v. Bradley, 9 Wall. 394, 19 L. Ed. 757; Reynolds v. Stockton, 140 U. S. 254 272, 11 Sup. Ct. 773, 35 L. Ed. 464.

Section 3404, Rev. Code 1915, permits a foreign executor upon complying with certain conditions prescribed, to bring suits in our courts. The statute requires that a copy of the letters of appointment certified under the hand and seal of the court or officer making the appointment, shall be produced in our court. This the plaintiff never did.

Argument for Plaintiffs Against Petition to Open Judgment for Want of Appearance.

Judgments have been opened or vacated for certain reasons or purposes, as shown by the decisions in this state; yet the powers of the court have never been clearly limited and defined by any decision on this point; nor does it appear whether the power is limited and confined by analogy to the practice under the common law writs of audita querela and coram nobis and coram vobis.

The writ of audita querela must be served upon parties made defendant to it. 3 Enc. Pl. & Pr. 122.

It is a regular suit, with its usual incidents, pleadings, issues of law and fact, trial, judgment and error. 3 Enc. Pl. & Pr., 113; Freeman on Judgments, § 95 Black on Judgments, § 299.

Like service was probably necessary on the scire facias issued upon the writ of coram nobis and coram vobis. 3 Enc. Pl. & Pr. 2.

In the event that the practice of opening judgments on motion is limited by analogy to the practice under the common-law writ of audita querela, the service on the rule must be actual and not substituted service, for it is not then a motion in the same suit, but is the institution of a new suit.

In the event that the court should be of the opinion that the filing of the petition and the issuance of a rule to show cause whether the judgment was not the institution of a new suit and that the rule issued as part of the proceedings in the main cause, it is submitted that the paper writing purporting to be a petition should be stricken from the files of the court, the rule discharged and the order directing the issuance of the said rule be vacated in that the said defendant has not appeared in said cause by giving special bail as required by the statute.

The judgment entered in this proceeding was an interlocutory and not a final judgment. Freeman on Judgments, § 12; Black on Judgments, § 28; 23 Cyc. 765; Woolley on Del. Prac. §§ 392, 764; Cit. Loan Ass’n. v. Martin, 1 Marv. 213, 40 Atl. 1108; Daniel v. Cooper, 2 Houst. 506.

An action or proceeding is pending from the time of its commencement until the rendition of final judgment therein. Rice v. McCaulley, 7 Houst. 226, 31 Atl. 240; 25 Cyc. 1469; Tichenor v. Collins, 45 N. J. Law, 123, 124; Holland v. Fox, 3 E. & B. 977, 985 ; 77 E. C. L. 977, 118 Reprint 1407.

The court has said in this case:

“The court are clearly of the opinion that in a foreign attachment suit against an individual there can be no appearance without entering special bail; indeed the entering of bail constitutes defendant’s appearance.”

See also 1 Sellon’s Prac. 91.

It appearing that the defendant has not entered special bail that is, has not appeared, it follows that he cannot be heard in any manner in the main cause.

If the court shall be of the opinion that the petition of the defendant was attempted to be filed in the main proceeding and was not the institution of a new proceeding, then the motions of the plaintiffs should be granted.

The facts set forth in the petition for opening the judgment are not sufficient to authorize the opening of the same.

The judgment rendered in this proceeding is collectible only from the property attached. The rendering of the interlocutory judgment makes more firm and stable the attachment but does not enable the plaintiffs to obtain satisfaction out of any property other than that attached; from which it follows that the opening of the judgment to permit the defendant to appear and defend, substantially vacates the judgment without dissolving the attachment.

The petition does not disclose that the defendant is able now to enter special bail. If the interlocutory judgment were opened or vacated the proceeding would be restored to the same condition it was at the time of entering the judgment, save only that the second term has now elapsed and the plaintiffs would be without an opportunity of obtaining judgment in the proceeding, even if the defendant should neither appear nor make any defense for the reason that the second term has now elapsed. The result would be that the action would be defeated without being defended.

If the prayer of the petition should be granted, and the interlocutory judgment should remain cautionary, there would then exist the order of the Superior Court that the amount due on the judgment be ascertained by inquisition at bar to be followed by another order of the court that the amount due on the interlocutory judgment be ascertained upon an issue framed by the court or upon an issue arrived at by the pleadings. The method and time of ascertaining the amount due on the interlocutory judgment by inquisition is prescribed by Section 3729, Rev. Code 1915, viz.: “At the same or next court.”

The method prescribed isexclusive. Woolley’s Del. Prac. §393.

The opening of the judgment would permit the defendant to defend without appearance. In actions instituted by summons the defendant may be heard at the inquisition and may give evidence in mitigation of damages, but this is because he may appear after the interlocutory judgment in the same manner as before. Woolley on Del. Prac. § 392.

But in cases of attachment where an appearance may be entered only by giving the required bail, the defendant cannot be heard at the inquisition. McClenachan v. McCarty, 1 Dall. 375, 1 L. Ed. 183; McDaniel v. Townsend, 4 Pennewill, 359, 55 Atl. 6.

If the judgment should be opened the requirements of the statute would be evaded and the defendant would be permitted to participate in the proceedings of the cause and defend at least in mitigation of damages without having even entered an appearance. It is impossible to conceive of such an anomaly. The defendant probably relies on Taylor v. Rossiter, 6 Houst. 485; In re Levy, 3 Pennewill, 5, 50 Atl. 540; In re Warthman, 4 Pennewill, 319, 55 Atl. 6.

In each of these cases the judgment was final and not interlocutory at the time the petition was filed. The petition in each case followed the requirements of Section 4089, Rev. Code 1915.

Some of the circumstances under which judgments generally may be opened are set forth in Woolley’s Delaware Practice, §§ 838 to 842; also when they may be opened for the purpose of ascertaining the amount due thereon, Id. §§ 843 to 846; also when they may be vacated, Id. §§ 847, 849.

There are certain well recognized and well defined grounds for which default judgments will be taken off or set aside. The defendant does not allege irregularity, fraud, mistake or any other legal reason for setting aside the default. The sole ground alleged other than the allegation pertaining to the letters testamentary, is one of hardship which is not sufficient to set aside the default, and to nullify the statute. Home Loan Ass’n v. Foard, 3 Pennewill, 165, 50 Atl. 537; Woolley v. Corbit, 3 Pennewill, 501, 51 Atl. 601.

Defendant alleges that the plaintiffs have not produced to the court, letters testamentary as required by the statute, and contends that the court was without jurisdiction tb enter the interlocutory judgment.

The plaintiffs submit that the record discloses—

(1) That the allegation is not true in fact.

(2) That the nonproduction of letters is not jurisdictional, but are evidence as to and show only one of two things:

(a) Capacity of plaintiffs, or

(b) Title of plaintiffs.

(3) Lastly, that the defendant is, by the default judgment precluded from denying either the capacity or title of plaintiffs. Sections 3404, 3405 and 3406, Rev. Code 1915.

1. Whether required, or not, the plaintiffs filed a declaration in this proceeding at the time prescribed by the rules of this court for filing declarations generally; the said rules not yet having been construed in their application to attachment proceedings. The declaration is a part of the record in this cause, and therein the plaintiffs made in the usual form, profert of the letters testamentary; the effect of which was to bring the letters testamentary into court, where they remained during the term after profert was made. Woolley on Del. Prac. § 398; 18 Cyc. 988; Bouvier’s Law Dictionary, Profert in Curiam; 16 Enc. of Plead. & Prac. 1082; 7 Bacon’s Abridgement, 628; Russell v. Jones, 1 Harr. 433, 436, note.

The record discloses that the letters testamentary were produced in court, not only before the interlocutory judgment, but in the only manner that was proper at that step of the case.

2. Production of letters is not jurisdictional, but goes only to capacity or title of plaintiffs. 18 Cyc. 1242; Mitchell’s Adm’r v. Woodward, 2 Marv. 311, 43 Atl. 165.

Production of letters testamentary pertained only to the capacity or title of plaintiffs, and not having been specially pleaded by the defendant any failure to produce was waived by him.

3. If the production of letters shows capacity of plaintiffs, the defendant’s confession of the cause of action by default admits the plaintiffs’ character and capacity as completely as a plea of non assumpsit, and the plaintiffs’ capacity is thereby admitted.

If the granting of letters to the plaintiffs is a link in the plaintiffs’ title, the defendant’s confession of the plaintiffs’ cause of action by suffering judgment by default is a complete admission of the granting of letters. 23 Cyc. 752, 1229.

It being shown that the production of letters is not jurisdictional, the defendant, even if he were in court, would be by the default judgment precluded from denying any matters necessary to support the judgment.

Per Curiam

(Court in Banc):—In the matter of the rule to show cause why the judgment entered in the above stated case should not be opened, and the defendant let into a trial, the court are of the opinion that the rule should be discharged. Our decision of this question makes it unnecessary to express any opinion upon the other points certified to the Court in Banc.

It is ordered that the foregoing opinion be and it hereby is certified to the Superior Court, for New Castle County.

(Signed by the Judges.)

Thereupon the Superior Court made an order discharging the rule. Subsequently on the 29th day of May, 1916, the amount due on the judgment, obtained for want of appearance, was ascertained by inquisition at bar to be two hundred thousand one hundred and sixty eight dollars and fifty-seven cents, for which amount final judgment was entered.

On the same day, the defendant presented a petition praying:

“ That the said final judgment may be opened and that he may be permitted to appear in this court and disprove or avoid the said debt or claim, and also that said final judgment be vacated.”

The court directed that a rule issue, addressed to the plaintiffs, returnable on the 19th day of September following. Service of the rule was made on Hugh M. Morris, one of the attorneys for the plaintiffs. The petition filed recites the proceedings in the action, and the efforts of the defendant to obtain bail; his failure to do so; his attempt to appear and plead; the filing of petition to open default judgment, to the end that the defendant might be permitted to contest the claim of the plaintiffs; the entry of the final judgment; the present inability of the defendant to furnish bail in the amount demanded; and discloses that a suit was instituted in the United States District Court for the District of Colorado by the plaintiffs and one Francis H. McKnight against the Wooten Land and Fuel Company, the defendant, and other persons, praying an accounting by the said Ownbey, who had been the general manager of the said the Wooten Land and Fuel Company, and the appointment of a receiver for said company. The petition further alleges:

“In said cause a receiver for said company was duly appointed and certain matters therein were referred to a master to take testimony; ” that the master is still engaged in taking testimony in said 'cause and the receiver so appointed is now in possession and control of the property of the said the Wooten Land and Fuel Company, and that by reason thereof the market value of the shares of said company has been temporarily destroyed.

There is no allegation of any impropriety, illegality or fraud in the institution of the suit in Colorado. It is also alleged on advice, that the- plaintiffs in this action did not produce to this court their letters testamentary.

As heretofore, the questions of law raised by this motion were directed to be heard by the Court in Banc, and were so heard.

Argument in Support of Motion to Open the Final Judgment AND THAT DEFENDANT BE PERMITTED TO APPEAR AND

Disprove or Avoid the Debt or Claim, and that the

Final Judgment be Vacated.

The foundation principles which should govern the court in the present application are sufficiently laid down in the brief upon the motion to open the judgment by default.

Among the principles there set forth, reinforced by authority and argument, are:

(1) Courts of general jurisdiction have an inherent power essential to such jurisdiction to open or vacate judgments, and do not depend for such power upon a statute, and that a statute covering certain phases of the power has no operation to limit the powers of such courts in the exercise of the due administration of justice. (2) The petition and rule to show cause have been judicially determined in this state to be the proper procedure for moving to open a judgment by default, in a foreign attachment case. In re Levy, 3 Pennewill, 5, 50 Atl. 540. (3) The motion is directed to the sound discretion of the court. Courts should be more inclined to grant than tó deny such motions. (4) The Superior Court has equitable and discretionary powers in the premises to which the application is directed. (5) This court has never refused to exercise such powers, when called upon for such exercise, upon a motion to open judgment in a foreign attachment and let the defendant in to disprove the amount of the indebtedness. The three cases of our reports cited show that such applications were made, and in two of them the judgments, which were then final judgments, were opened and the defendant was allowed to defend.

The difference between the opening of a judgment for the purpose of permitting a defense, and the vacation of a judgment, is apparent from the essential meaning of the terms used. 23 Cyc. 967, 973.

The plaintiffs contend that there is no power in the court, upon any terms or under any conditions, to open the final judgment by default in a foreign attachment case, except as provided in Rev. Code 1915, § 4135. It is submitted that such a conclusion has no basis in the law. 23 Cyc. 889 and 907; 1 Black on Judgments §297; Bradley v. Slater, 58 Neb. 554, 78 N. W. 1069; Donnelly v. McArdle, 14 App. Div. 217, 219, 220; 43 N. Y. Supp. 560; Kiefer v. Grand Trunk R. Co., 55 Hun, 604, 8 N. Y. Supp. 230; Ladd v. Stevenson, 112 N. Y. 325, 19 N. E. 842, 8 Am. St. Rep. 748; Martinson v. Marzolf, 14 N. D. 301, 103 N. W. 937.

Our contention is, that there is nothing in the statute which should interfere with the exercise by the court of its general common law power to open its judgments, where applications are made at the first term upon the proper causes shown.

The pending motion was made at the term of the rendition of the final judgment, and still retains the character of a motion made before the end of the term at which the judgment was rendered.

It would be a vain thing for the plaintiffs to contend that the mere fact that the proceedings in foreign attachment and the judgment therein obtained are regulated by statute, places such judgment beyond the reach of the court under its essential powers in the regulation and disposition of its own judgments at the term of their rendition.

The general, inherent and essential power of a court to control its own judgments during the first term is not a power to control or open a common law judgment, but a common law power to open judgments, whether rendered in accordance with statute or otherwise, where a proper case was presented.

It must be presumed that the real contention made is, that the court is powerless when a statute provides relief against a judgment within certain specified times or for certain specified causes, to proceed for the opening of a judgment at any other than the specified time or for any other than the specified causes. For contra, cases cited immediately preceding. The plaintiffs cite Woolley v. Corbit, 3 Pennewill, 501, 51 Atl. 601; Home Loan Ass’n v. Foard, 3 Pennewill, 165, 50 Atl. 537.

The first case simply supports the principle that, where a party proceeds professedly in accordance with the terms of a statute, the terms of the statute must be conformed to. In the present case, the application is founded upon the essential powers of the court to grant relief in cases where the statute is silent. In the second case the sole legal reason given by the court, in denying the application, was that such application was “not within the statute.” This case is of no authority whatsoever in the case at bar, for reasons heretofore fully set forth.

The comment upon Taylor v. Rossiter, In re Levy, and In re Warthman is of moment only in case the principle for which plaintiffs contend is sound law. These cases are clearly sustainable upon the principles of the authorities and cases cited, supra, beginning with 23 Cyc. 889.

The cases of Wells v. Shreve’s Adm’r, 2 Houst. 329, Frankel v. Satterfield, 9 Houst. 201, 19 Atl. 898, and National Bank of W. & B. v. Furtick, 2 Man. 35, 42 Atl. 479, 44 L. R. A. 115, 69 Am. St. Rep. 99, definitely limit the matter under discussion by plainly stating that the suit in foreign attachment in this state in its original character is “in the nature of an ex parte proceeding in rem to judgment in condemnation against the property bound by the foreign attachment.” The discussion of the Court in Banc in its earlier opinion in this cause is also obviously confined to the proceedings preceding final judgment.

Statutes allowing appearance in foreign attachment cases only upon entering bail are generally obsolete. We must, therefore, refer to general principles, and it may be advisable to consider the nature of the lien in foreign attachment, and of the final default judgment in cases which remain until such judgment proceedings in rem. Shinn on Att. & Garn. §§ 10, 323 and 324.

The statutes of this state upon foreign attachment are consistent with Shinn’s discussion. They provide for a definite course of procedure, in which times and conditions are strictly provided for, perfecting the lien in and by the final judgment by default.

It would seem to be that the lien upon the property attached which was initiated by the levy under the writ in foreign attachment, is finally perfected by, and merged in the final judgment, and that by no proceedings subsequent to the final judgment, even though an appeal or an appeal with security is had, will affect the lien so perfected and merged. 1 Shinn on Att. § 451.

Opening a default judgment merely to let the defendant in to a defense does not destroy its lien; the lien continues for the statutory period. 1 Black on Judgm. § 472.

“Under no circumstances will the court be justified in refusing to receive and hear a motion to vacate the judgment; its discretion is to be exercised on the facts as developed on a hearing, not in defense of it.” 23 Ency. Law. and Prac. 897.

No reported Delaware case has been found, wherein the court has refused to entertain a petition or motion to open or set aside any judgment. In Taylor v. Rossiter, In re Levy, and In re Warthman, the court, without expressed doubt or question, did entertain petitions and motions to open final default judgments.

The plaintiffs contend that “remedy by attachment must be pursued in conformity with the terms of the law conferring it.”

The plaintiffs’ lien must depend upon strict conformity with the statute. Even after the final ’judgment, when the plaintiff gets his order of sale, and thereunder sells, he must observe the statute. He cannot take away the proceeds of the sale, without entering the bond provided for in Section 4135, Rev. Code 1915. If the defendant applies to open the judgment, for the purpose of questioning the amount due thereunder, under Section 4135, he also must strictly observe the statute. If the court has not inherent and essential power over its judgments, upon applications made at the term of their rendition, and if the provisions of said Section 4135 could be held to exclude the exercise of such essential and inherent powers of the court, and confine the court and the defendant to the regulations in Section 4135, in the matter of opening the final judgment in foreign attachment, the defendant would, of course, be without present remedy. The law, however, appears to be plainly and clearly laid down to the contrary, as already shown.

The plaintiffs invoke the rule of construction commonly expressed, “Expressio unius est exclusio dlterius.” This is not a primary rule, and is invoked only secondarily when other rules may fail.

It is evident that there is no expressed intention of limiting the remedy of the defendant to the time and manner provided in Section 4135, to apply for the opening of the judgment, for the purpose of questioning the amount due. The inherent and essential powers of a court of law to control its judgments upon applications made at the term of their rendition, cannot be destroyed by a possible implication so faintly suggested as in said Section 4135. All of the cases which have dealt with this particular proposition, have found, and hold that such essential and inherent powers of a court of law have not been destroyed by a statute providing for a particular exercise in particular cases, and at particular times, or under particular conditions, of a portion of such essential powers.

Counsel for the defendant gathers from plaintiffs’ consideration given to opening and vacating judgments, that the points intended to be made are:

(1) That the opening of the judgment for the purpose of allowing the defendant to prove that nothing was due the plaintiffs, is in effect the setting aside of the judgment, and that thereupon would be renewed the condition that the defendant could not appear in the cause before judgment without entering security.

(2) That the opening of the judgment for the purpose of allowing the defendant to prove that nothing was due would in effect amount to setting aside the judgment as aforesaid, and that if the defendant should be allowed to appear for the purpose of questioning the amount due under said judgment, the judgment, when obtained after said hearing, if any sum was proven to be due the plaintiffs would be a different judgment, to wit, a personal judgment, and not a judgment in rem, and that the lien would be lost.

The force of the suggestions largely depends upon the nature of the final judgment by default into which the lien has been merged. We may start with the proposition that the final judgment by default is a lien on the property seized under the writ.

Considering the authorities cited, the court in Lofland v. McDaniel, 1 Pennewill 416, 41 Atl. 882, limited the inquiry to matters subsequent to the judgment.

The statement of the practice in Pennsylvania, by which the judgment is opened for the purpose of allowing the amount to be questioned, and at the same time continuing and retaining the lien of the attachment and judgment upon the property attached, seems to announce a reasonable rule and procedure, and appears to have been followed by this court in the case of In re Wartkman.

Mott v. Union Bank of New York, 38 N. Y. 18, states that:

"The court has authority, under its general powers, as well as under Section 174 of the Code, in its discretion, and upon such terms as it conceives to be just, ‘to relieve a party from a judgment,’ and allow an answer to be made.”

In that case, the terms imposed by the court in its order allowing the judgment to be opened, and the amount claimed thereunder litigated, was that the judgment should “stand as security for the alleged indebtedness of the defendant to the plaintiff,” pending the inquiry. This is substantially the course adopted by the court In re Warthman.

There seems to be no real doubt of the power of the court to impose such terms for opening a judgment which is a lien upon property merely for the purpose of allowing the amount claimed to be questioned.

The opening of a judgment may temporarily suspend the further prosecution of the remedy by execution or otherwise, but does not reasonably import setting the judgment aside in the sense that the judgment itself is destroyed.

If the court in the present cause should order the judgment to be opened, for the purpose of allowing the defendant to show that no sum was due thereunder, and order as one of the conditions of opening that the lien of the judgment should be continued upon the property attached, when the trial has been had upon the question of amount, and the judgment was again closed, if any sums were found due, thé judgment so closed must necessarily have the character of the original judgment.

The court can also, by virtue of its general inherent and essential powers, impose conditions of appearance and defense of amount claimed, in making its order of opening and retain the judgment in its character as a lien upon the property attached. McDaniel v. Townsend, 4 Pennewill 359, 55 Atl. 6, does not disclose to counsel for the defendant that it is an authority in the present application.

Plaintiffs suggest that the petition does not set forth a sufficient reason to move the court, on the ground that there is no allegation of fraud in the combination of the action in Colorado cotemporaneously with the action in Delaware. By the proceedings in Colorado, these plaintiffs have destroyed temporarily the value of the defendant’s stock, which was attached, for any purpose of entering the security required. Having done that, the plaintiffs bring suit under the harsh laws of Delaware regulating foreign attachments and put the defendant in the position that he may not and cannot defend against the alleged claim of the plaintiffs, without doing a thing wholly impossible for him to do, owing to the condition of his capital stock so attached. Why is there any necessity to allege fraud on the part of the plaintiffs? The condition of the defendant would be the same, whether there were fraud or not on the part of the plaintiffs. The case presented to the court is, whether, having been advised of the facts it will permit, if within its power to prevent, the defendant to be financially destroyed by a combination of facts and circumstances created by the plaintiffs and of which they are taking advantage.

It is suggested by counsel for the plaintiffs that the Superior Court has not full equitable powers of a court of chancery, and that therefore, the proper remedy of the defendant may in a court of equity. Woodward, Baldwin & Co. v. Arlington Mills, is cited. It is submitted that, there being plainly and clearly a remedy in this court, it would be futile to send the case to the Court of Chancery which will not take jurisdiction so long as there is a plain remedy at law. Home Loan Ass’n v. Foard, 3 Pennewill, 165, 50 Atl. 537, and Woolley v. Corbit, 3 Pennewill, 501, 51 Atl. 601, are inapplicable in this connection.

It is also suggested that the plaintiffs might be subjected to three trials in the proof of the amount claimed in the cause, one on the occasion of the inquisition at bar before final judgment was entered; a second upon the opening of the judgment; and third, by a trial under the provisions of Rev. Code 1915, § 4135, should the defendant, after trying the case upon the opening of the judgment, demand his further statutory right for a rehearing upon the same question of amount due under the provisions of the refunding bond. It may be that this contention is sound as a legal possibility. The improbability that there could be a really effective retrial of the issue of the amount due under the provisions of Section 4135, after a full hearing and decision against the defendant under the motion for opening the judgment for the same purpose is extreme. But, assuming that such a condition might be legally possible, the court is presented with a plain alternative, to wit, will it, by reason of the legal possibility of a rehearing under Section 4135, subject the defendant to a most disastrous loss? All substantial purposes of entering bail have ceased, inasmuch as the palintiffs now have the res, seized under the writ, formally held by the lien of the final judgment obtained.

The motions for relief in the present case, detailed in the petition for the opening of the final judgment, demonstrate the diligence of the defendant and negative any suggestion of laches in pursuing his present remedy. Final judgment has been obtained. The statute does not limit the period within which an order of sale or execution must be applied for. No right of the plaintiffs can now be prejudiced if the court should say to the plaintiffs, “Wait a minute, while we inquire how much your claim really ought to be against this defendant.” The case is therefore at last in a position where the court may, without any apprehension of inflicting an injustice, pass upon the merits of the application of the defendant to be heard in order to show that nothing is due from the defendant to plaintiffs.

In a broad sense, the judgment is not set aside; it is opened with the intent to be finally closed in a judgment of the same character if any amount is found to be due the plaintiffs, and so far as the lien of the judgment is concerned and the quality of the lien of the foreign attachment, they may be saved by /an order allowing the attachment and judgments to stand as a lien against the property pending such examination of the amount due.

Smith v. Eyre, 149 Pa. St. 272, 24 Atl. 288, simply decided that a judgment entered by default in a suit commenced by a writ of foreign attachment binds only the property attached.

McClenachan v. McCarty, 1 Dall. 375, 1 L. Ed. 183, simply decided that a defendant in foreign attachment was not entitled to appear at the inquisition which was held to ascertain the amount of the default judgment.

As to Railroad Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061, and Ladew v. Copper Co. (C. C.) 179 Fed. 245, the defendant is making no contention which interferes at all with the principles of those cases.

Courts have not frequently been called upon to consider the right in question. Such right was adjudged in Smith v. Harris. 135 Ind. 621, 623, 35 N. E. 984; Callender v. Painesville, etc., R. Co., 11 Ohio St. 516, 520.

The right of a party to apply for relief by motion in a pending cause has never been questioned in Delaware.

Motions to open judgments in foreign attachment cases have been presented and adjudicated, under parallel conditions to the case at bar. Taylor v. Rossiter, 6 Houst. 485; In re Levy, 3 Pennewill, 5, 50 Atl. 540; In re Warthman, 4 Pennewill, 319, 55 Atl. 6.

Argument Against Motion to Open the Final Judgment.

Until bail be put in defendant is not in court to plead anything nor is plaintiff bound to declare against him. Highmore on Bail, 41; Sellon’s Prac. 91; Drake on Attach. § 5.

The institution of a suit by foreign attachment processs is a statutory proceeding, which must be pursued conformably with the statutory provisions authorizing it. Here it is, in its original character, in the nature of an ex parte proceeding in rem to judgment of condemnation against the property bound by the foreign attachment; for, while it continues such, there is no appearance of the defendant, no defense whatever pleaded, no issue joined, and no trial had. Frankel v. Satterfield, 9 Houst. 201, 19 Atl. 898; Wells v. Shreve’s Adm’r, 2 Houst. 329; Nat. Bank of W. & B. v. Furtick, 2 Man. 35, 51, 42 Atl. 479, 44 L. R. A. 115, 69 Am. St. Rep. 99; and the opinion of the Court in Banc, first filed in this proceeding.

Remedy by attachment must be pursued in conformity with the terms of the' law conferring it. Drake on Attachment, § 4; Reynolds v. Howell, 1 Man. 52, 59, 31 Atl. 875; Penna. Steel Co. v. N. J. S. R. R. Co., 4 Houst. 572, 578; Rev. Code 1915, § 4137.

The method of ascertaining amount due on interlocutory judgments is provided for by Rev. Code 1915, § 3729.

The method for the disproving after judgment of the claim of the plaintiff in a foreign attachment proceeding is provided for by Rev. Code 1915, § 4135.

The maxim “expressio unius est exclusio alterius” controls and prevents the judgment in a foreign attachment proceeding from being opened in any manner other than that prescribed by statute. It also prevents the disproving of a claim after judgment in any manner other than as provided by the statute. District Township v. Dubuque, 7 Iowa, 262, 275, 276; Scott v. Ford, 52 Or. 288, 296, 97 Pac. 99; State v. Gas Co., 15 Am. 294, 138 Pac. 781; New Haven v. Whitney, 36 Conn. 373, 375; In the Matter of the Attorney General, 2 N. M. 49, 56, 57.

An analysis of the cases and text-books shows that judgments are opened or vacated in three instances:

(1) Where the entire proceedings and judgment rendered thereon are null and void.

(2) Where a judgment may have been paid or otherwise discharged since its rendition and the judgment remain unsatisfied. Lofland v. McDaniel, 1 Pennewill, 416, 41 Atl. 882.

(3) Where a judgment may be set aside, vacated or opened, as a result of proceedings had:

(a) For material defects.

(b) For irregularity.

(c) Upon excuse and as a favor.

The first two are applicable to all judgments, the third to default judgments only.

No attack has been made on the judgment for a material defect therein of error in the record other than the allegation of nonproduction of letters, which is overcome by the record and the previous determination by the court; or for irregularity.

The basis of the application must be found, if at all, under the third head, a legal excuse for the default committed by him, viz. his nonappearance. Did the record and judgment disclose a fatal error, the judgment, of course, would be set aside regardless of the effect thereof on the plaintiff’s position in court, as a matter of right and not as a matter of discretion. If defendant has permitted plaintiff to obtain judgment against him by default, the defendant may, in common-law actions, on showing á sufficient legal excuse therefor, have the default judgment set aside and the proceedings restored to that stage of the case which will permit a trial of the merits. Where a judgment is set aside, if the plaintiff can recover anew, a new judgment terminates the cause. It seems that in Pennsylvania a practice unknown to the common law has grown up whereby the judgment is opened to permit a trial, but on the termination of that trial, if the judgment be in favor of the same party the old judgment is closed and on the order of the court stands and is for amount determined by the last trial, but the courts have uniformly held that where a judgment is so opened it remains as security for whatever may be found due on retrial, but in all other respects the subsequent proceedings are as if no judgment had ever been entered in the cause or proceeding. Carson v. Coulter, 2 Grant, Cas. (Pa.) 121; Sossong v. Rosar, 112 Pa. 197, 3 Atl. 768; Harris v. Harris, 154 Pa. 501, 26 Atl. 617; Long v. Morning Star, 212 Pa. 458, 61 Atl. 1007; Farmer’s Loan & Trust Co. v. Killinger, 46 Neb. 677, 65 N. W. 790, 41 L. R. A. 222, and note; Harbaugh v. Butner, 148 Pa. 273, 23 Atl. 983.

Mott v. Union Bank of N. Y., 38 N. Y. 18, determines the status of a default judgment upon which the defendant was permitted to plead.

The Pennsylvania courts have also held that an opened judgment is not a final judgment in the full sense of the term. Savage v. Kelly, 32 Legal hit. (Pa.) 5.

When the judgment is opened it remains a judgment, instead of being stricken off, solely for the protection of the plaintiff, to furnish security for him in the event that he recovers on the retrial. It does not remain a judgment against the defendant in any sense as a reward to the defendant for having been in default.

As a defendant cannot defend before judgment without first appearing, he cannot, of course, when the judgment is in legal effect stricken off to permit him to defend, any more defend without appearing, than he could originally have defended without appearing.

Assuming that the defendant has shown a sufficient legal excuse for his default, viz., his failure to appear, the court would not open the judgment and thereby leave the record in a condition which migh debar the plaintiff from ultimate relief in event of failure of defendant to appear, unless the court is assured that defendant can and will appear as required by the statute. The petition expressly avers the inability of the defendant to enter special bail now even were the judgment opened.

The defendant can appear on judgment opened only as he may appear before judgment rendered, viz., by giving special bail.

In Taylor v. Rossiter, 6 Houst. 485, the points here raised were not called to the attention of the court and were not passed upon.

In re Levy, 3 Pennewill 5, 50 Atl. 540, a motion was made that the judgment be opened and that the defendant be permitted to come in and plead and give security, which, it is submitted, was a proper application. The court considered merely the procedure of opening judgments and directed that a rule issue.

In In re Warthman, 4 Pennewill 319, 55 Atl. 6, an application was made that the defendant be allowed to enter into a recognizance, appear in court, and move to dissolve the attachment. This application was apparently considered as being in substance the same as the motion made in In re Levy. The court considered the question merely of dissolving the attachment, and held that the attachment remained. The effect of opening the judgment or manner of defendant’s subsequent appearance were not before the court and were not passed upon, nor was the attention of the court called to the fact that when the defendant appears, the plaintiff if he obtain judgment is entitled to a judgment in personam. Also that such judgment be secured by special bail. The defendant’s appearance would prevent the final judgment being a judgment in rem and a judgment in personam without the requisite special bail against a nonresident, would probably be without benefit to the plaintiff.

These three cases are not authorities against the contentions of the plaintiffs.

The case of McDaniel v. Townsend, 4 Pennewill 359, 55 Atl. 6, should be considered in this connection.

No impropriety whatsoever or improper motive is attributed to the plaintiffs in the cause in Colorado. The petition in substance shows that it is a cause duly instituted and prosecuted. This proceeding could have no effect whatsoever, -unless it were shown to have been instituted or prosecuted for the purpose -of defrauding this defendant. Fraud is not alleged, and fraud is never presumed. In substance then, the petition presents as the sole ground for opening the judgment, the inability of the defendant to furnish special bail. The statute contains no exception in favor of persons unable to furnish special bail and it provides no exception for such persons.

The. plaintiffs deny that there is any equity shown by the petition. Banorgee v. Hovey et al., 5 Mass. 24, 4 Am. Dec. 17.

That the Superior Court has not in the exercise of its discretion full equity powers is shown by Woodward, Baldwin & Co. v. Arlington Mills, 2 Pennewill 188, 44 Atl. 620.

The defendant has a statutory right of trial (Rev. Code 1915, § 4135), after the property condemned has been sold. It does not accord with legal ideas that the defendant should have the opportunity he now seeks to try his case and also another afterwards under the foregoing section of the Code.

The contention of the defendant is inconsistent with the theory of foreign attachment proceedings. McClenachan v. McCarty, 1 Dall. 375, 1 L. Ed. 183.

That hardship is not a sufficient ground for vacating judgment is shown by Home Loan Ass'n v. Foard, 3 Pennewill 165, 50 Atl. 537, Woolley v. Corbit, 3 Pennewill 501, 51 Atl. 601; Railway Co. v. Taylor, 210 U. S. 281, 295, 28 Sup. Ct. 616, 52 L. Ed. 1061, and Ladew v. Copper Co. (C. C.) 179 Fed. 245.

It is to be remembered that giving special bail or bond as a prerequisite to appearance is required by our law in instance other than attachment. Had the defendant been able to give special bail prior to the final judgment he would not have been, permitted to defend without incurring the risk of a judgment in personam against him. Is a defaulting defendant to be placed in a superior position to a defendant who makes no default?

The statute prevents the defendant being heard before judgment without his giving special bail; yet the defendant now seeks the court to permit him to do after judgment what the statute prevented his doing before judgment.

Defendant’s petition fails to show that were his default excused he could now enter special bail and thereby prevent a similar default. He relies on the discretionary or equitable powers of the court for relief. The object of the petition is not to show that the debt has been discharged or other defense arisen since the rendition of the judgment, but he seeks to have the judgment opened or set aside to show that nothing, or a smaller amount than called for by the judgment was due when the judgment was obtained.

No case, with the possible exception of the three Delaware cases cited has been found which has held that a judgment in rent may be opened and remain as security pending a trial on the merits. It is submitted that this cannot be done, for the theory of opening a judgment and letting it remain cautionary as security is that when it is closed it will be closed in the same form in which it originally was, possibly for a different amount, but opening a judgment in rem collectible only from the property attached and later closing it as a judgment in personam is a legal feat which has never yet been accomplished.

All the cases cited by counsel for defendant touching the opening of judgments show that an “opened” judgment lacks the quality of res adjudicata and “it leaves the action still pending and undetermined.” On what theory then, may he now appear in the pending and undetermined action, save by giving special bail? None, save as provided by Rev. Code 1915, § 4135.

The judgment here is unknown to the common law, the right thereto being given by statute. When such judgment is obtained in conformity with the statute, the plaintiff’s right thereto is made absolute, Rev. Code 1915, § 4137; and there is no room for the operation of the alleged common-law powers of the court. The court must give judgment for the plaintiff, under Rev. Code 1915, § 4137, when he has complied with the statutory conditions precedent, and must ascertain the amount due thereupon by inquisition. Rev. Code 1915, § 3729.

It is submitted that the defendant has not shown a right to have the judgment opened. Carpentier v. Insurance Co., 2 Bin. (Pa.) 264; Bushel v. Insurance Co., 15 Serg. & R. (Pa.) 181; 36 Cyc. 1103; St Louis & S. F. R. Co. v. Delk, 158 Fed. 931, 934, 86 C. C. A. 95, 14 Ann. Cas. 233; Ladew v. Tennessee Copper Co. (C. C.), 179 Fed. 245, 252; Railroad Commission v. Grand Trunk Western R. Co., 179 Ind. 255, 100 N. E. 852, 855.

Our contention is, that the opening of the judgment leaves the action still pending and undetermined and as the defendant could not originally appear in the pending and undetermined action without giving security, he cannot otherwise appear therein when the action is restored to a pending and undetermined status. Smith v. Eyre, 149 Pa. 272, 24 Atl. 288, seems directly in conflict with the contention of counsel for the defendant.

It follows from this case that the defendant has not yet appeared in the main cause, and the Court in Banc has held that the defendant cannot appear in the pending and undetermined action save by giving bail.

Apart from the reply now made to the argument of counsel for the defendant, it is respectfully submitted that the statute is controlling upon the question before the court.

Rev. Code 1915, § 4137, gives the plaintiff an absolute and unqualified right to judgment.

Rev. Code 1915, § 3729, prescribes the method of ascertaining the amount of such judgment. The right to this judgment being statutory, the plaintiff may not be deprived of this judgment if it be regularly obtained. Rev. Code 1915, § 4169, provides for judgment for plaintiff at the first term in default of affidavit of defense. This likewise, it is submitted, would be an absolute and unqualified judgment were it not for a provision in the statute (same section) authorizing the court to open such judgment under the conditions there provided and it cannot be imagined that the court would open such judgment under any terms other than those therein provided.

Rev. Code 1915, § 4089, provides for judgment for default of , appearance in suits instituted by writ of summons. This statute also authorizes the court to take off such default judgments under the conditions there mentioned. Woolley v. Corbit, 3 Pennewill 501, 51 Atl. 601, and Home Loan Ass’n v. Foard, 3 Pennewill 165, 50 Atl. 537, show that such judgment can be taken off only in the method prescribed by the statute.

Rev. Code 1915, § 4135, provides for defense by defendant in the event of his having sustained judgment by default in the foreign attachment proceeding.

The statute therefore makes the right of the plaintiff to a judgment under Section 4137 absolute, save as qualified by Section 4135, and the court is therefore deprived by the statute of any power to open a judgment regularly obtained under Section 4137, however great in the opinion of the court the hardship imposed on the defendant by such statute.

It is submitted, therefore, that the court cannot open the judgment in the case at bar, it having been regularly obtained, under any terms whatsoever.

The court in Taylor v. Rossiter, In re Levy, and In re Warthman were probably led mto error by overlooking the limited scope of Section 4089 and without considering the points herein set forth.

Pennewill, C. J.,

delivering the opinion of the Court in Banc:

After the plaintiffs had obtained final judgment in this case, the defendant filed a motion asking that the same be opened, and that he be permitted to appear and disprove or avoid the plaintiff’s claim, and that the judgment be vacated.

The rule to show cause, issued upon such motion, was served, upon plaintiffs’ counsel, it not being possible to serve it upon the plaintiffs’ themselves, because they were not in this state.

[5] While objection is made to such service, it appears to be formal only, and is not urged with much force or confidence. It is unnecessary, we think, to give any reasons or authorities for holding that the service of the rule was good and legal. The only question for the court to consider is whether the judgment in question should be opened.

[6] The court have been very strongly impressed, during the progress of this case, with the thought that the situation of the defendant was not only a hard one, but also very exceptional.

Having no property whatever except the corporate stock attached, the attachment together with the receivership secured in Colorado made it impossible for the defendant to enter the bail demanded in the action. By the receivership proceeding the stock was stripped of any immediate market value and became practically worthless as a security or pledge for advancement or loan. For that reason the court were at one time strongly inclined to believe that after final judgment was obtained and the lien perfected, it would be just to the defendant and not -unfair or prejudicial to the plaintiffs to open the judgment so that the case could be tried upon the merits without requiring the entry of security or special bail. We 'have no doubt that a court of general jurisdiction, in the control of its own judgments, has the inherent power to open a judgment of this character if convinced that it would be in furtherance of justice to do so.

Such power has been exercised or recognized by the Superior Court of this state in cases similar in character to the present case. Taylor v. Rossiter, 6 Houst. 486; In re Warthman, 4 Pennewill 319, 55 Atl. 6; In re Levy, 3 Pennemill 5, 50 Atl. 540.

But those cases were different from the present one in this important particular: The defendant had no knowledge of the attachment until final judgment was obtained. It was impossible for him to dissolve the attachment by entering security because he had no opportunity to do it. He was entirely ignorant of the proceeding, and the court held that he should have an opportunity to make his defense.

In the present case the defendant had knowledge of the attachment from the time it was made, and the only excuse he can give for failing to appear is that it was impossible for him to furnish security in the large amount demanded.

Because of the peculiar circumstances of the case, and the inability of the defendant to appear by giving the bail required, his motion to open the judgment in order that he might have an opportunity to make a defense, and the case be tried on the merits, appealed strongly to the sympathy and discretion of the court. But after a most careful consideration of all the facts we are forced to the conclusion that no sufficient reason has been shown to justify the opening of said judgment.

We are clearly of the opinion that the Legislature ought to provide for the opening of a judgment in foreign attachment against an individual in the same manner as is provided in cases against corporations, but we are equally clear that the court cannot relieve the defendant from the hardship imposed by the statute. To do so would be judicial legislation.

While the position of the defendant is difficult and unfortunate, the case is, after all, not exceptional save in the amount of bail demanded.

Another case involving similar facts will probably never arise in the Superior Court again, but it will frequently happen that a defendant will find it impossible to furnish the security required; and such impossibility may be caused by the fact that he has no property other than that attached. It may be just as difficult or impossible for an individual of small means to furnish the bail required to dissolve the attachment as for a man of large property which is so situated as to be unavailing as security for a loan.

The fact that the receivership in Colorado has deprived the property of the defendant of any immediate market value is, we think, immaterial in the present case, and cannot avail the defendant in his motion. For anything that appears in his petition the receiver was regularly appointed. We must assume that the court was justified in making the appointment. Indeed, the defendant does not charge that the receivership was caused by any fraud or unfairness on the part of the plaintiffs, or that the purpose of the plaintiffs in securing the appointment of the receiver was to enable them to obtain possession of his property by foreign attachment proceeding. There does not seem to be any connection between the two proceedings at all.

Being unable to find any facts in this case that would justify the court in opening the judgment in question, without security, the defendant’s motion is refused.

It is ordered that the foregoing opinion be and it is certified

to the said Superior Court. . , , *

, (Signed by the Judges.)

Whereupon the Superoir Court made the following order:

Per Curiam.

And now, to wit, this twenty-seventh day of

November, A. D. 1916, on motion of the plaintiffs’ attorneys, for an order to sell the shares of stock attached by virtue of the above writ, or as many shares as shall be sufficient to satisfy the debt, interest and costs of the judgment obtained upon the said writ:

It is ordered by the court that the said shares, or so many of these shares as shall be sufficient to satisfy the debt, interest and costs aforesaid, be sold at public vendue to the highest bidder, upon such notice as is required for sales upon execution process.