Stidham v. Thatcher, 18 Del. 567

18 Del. 567 | Del. Super. Ct. | 1900

The Court held the matter under advisement until September 26, when the following opinion was rendered:

Boyce, J.:

In this case it is conceded that the recitals in a

Court of general jurisdiction are conclusive; but it is alleged that there is not the same conclusive presumption in favor of courts of justices of the peace. While it is true that some courts have held that the recitals in the record of a Court of limited jurisdiction are never conclusive of a jurisdictional question and may be controverted dehors the record, yet we are not prepared to hold that the return of a constable, or the recital "in the record of a judgment of a Justice of the Peace of this State is not as conclusive here as is the return of process made to or a recital in a judgment of this Court.

The Justice’s Court is a Court of record, and has been so held by this Court, and the statute of this State with reference to the docket entries required to be made by the Justice expressly requires that the return of service shall be made a part of the record. (Revised Code, Sec. 18, p. 751). And in the case of a judgment by default as was the judgment in this case, the statute also requires that the service of process shall be verified by the officer making the service. (Revised Code, Sec. 5, p. 742). And the transcript filed in this case shows that the return was verified as by law required. We think, therefore, in matters over which the jurisdiction of the Justice extends under the statute clothing him with authority in the premises, a safer rule for us to adopt is to make no distinction in the conclusiveness of the presumption between the recitals contained in the records of this Court and those of courts of justices of the peace.

The petition is dismissed with costs.