JUSTICES' JURISDICTION IN CIVIL CASES FOR DEBT
AN ACT to amend Chapter 121 of the Revised Code of the State of Delaware and relating to appeals from judgments of a Justice of the Peace.
Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:
Section 1. That Chapter 121 of the Revised Code of the State of Delaware be and the same is hereby amended by striking out 4035, Section 32 of said Chapter, and by inserting in lieu thereof a new section to be styled 4035, Section 32, as follows:
"4035. Section 32. APPEALS WHEN TAKEN; SECURITY FOR; FORM OF ENTRY; SIGNING OF; HOW PROCEEDED ON; AP- PEAL OF EXECUTOR OR ADMINISTRATOR WITHOUT SECURITY: Such appeal shall be allowed by the Justice at any time within fifteen 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 and offering sufficient security in such sum as the Justice shall deem sufficient to cover the judgment appealed from and the costs on the appeal. The Justice shall make an entry thereof as follows: 'On the day of , A. D. 19 ...., the said A. B. appeals and C. D. becomes surety in the sum of ....Dollars, that the said appeal shall be prosecuted with effect and also that any judgment which shall be rendered against the said A. B. or his executors or administrators upon the said appeal shall be satisfied, and the said C. D. hereby authorizes and empowers the Superior Court of the State of Delaware in and for County to give judgment against me, the said C. D., or my executors or administrators, as surety, for the same amount as shall be given against the said A. B., or his executors or administrators, and such judgment, if and when entered, shall be a lien upon my real estate, and may be collected and treated as any other judgment in said Superior Court' ; which entry shall be signed by the sureties or it shall be void." "An appeal shall be allowed to executors or administrators without security."
Section 2. That Chapter 121 of the Revised Code of the State of Delaware be and the same is hereby amended by striking out paragraph 4036, Section 33 of said Chapter, and by inserting in lieu thereof a new section to be styled 4036, Section 33, as follows:
"4036. Sec. 33. DOCKETING OF APPEAL; WHERE; WHEN; HOW; SUMMONS ON; WHEN RETURNABLE; PROCEEDINGS ON APPEAL; WHEN TRIAL HAD; WHO PLAINTIFF ON APPEAL; MUTUAL DEMANDS TRIED ON; AMOUNT OF JUDGMENT UPON:- It shall be the duty of the appellant to have the appeal entered in the Superior Court of the County where the judgment was given, on or before the first day of the term next after the appeal; and for this purpose, to deliver a duly certified transcript of all the docket entries in the case to the Prothonotary, who shall file the same, after endorsing thereon the day of receiving the same, and set down the appeal on his docket, with its date, and time of filing the transcript; and shall issue a summons to the sheriff, or if he is interested, to the coroner, for summoning the respondent to appear and answer the appeal.
The summons, if issued in vacation, shall be returnable on the first day of the next term; if issued in term time, it shall be returnable forthwith. When the appeal is entered, the Court shall have jurisdiction and take cognizance thereof, and the pleadings and proceedings thereafter shall be as in causes commenced in the said Court; but the trial shall be had at the first term, unless the Court shall, for cause, continue the case. If the judgment annealed from, is for a defendant for any sum, he shall be plaintiff in the appeal and file the declaration; and in the appeal each party may make demands against the other, and the jury by their verdict may find a sum either for plaintiff, or defendant, but not for an amount exceeding two hundred dollars, exclusive of interest and costs, unless he shall have claimed more than that sum before the justice; and judgment shall be rendered accordingly. Provided that if such judgment is rendered against an appellor, or his executors or administrators, the Prothonotary of said Superior Court shall enter judgment against the surety or sureties or his or their executors or administrators for the same amount as shall be entered against the appellor, or his executors or administrators, and as a part of the same judgment, and such judgment so entered shall from that date become and be a lien on all of the real estate of the surety in the County, in the same manner and as fully as other judgments rendered in said Superior Court are liens, and may be executed and enforced in the same way as other judgments in said Court. And said surety or his executors or administrators shall be entitled to the remedies provided in Chapter 81 of the Revised Code of the State of Delaware as amended."
Section 3. That Chapter 121 of the Revised Code of the State of Delaware be and the same is hereby amended by striking out 4037, Section 34 of said Chapter, and by inserting in lieu thereof a new section to be styled 4037, Section 34, as follows:
"4037. Sec. 34. APPEAL, NOT DULY ENTERED, ABATES; PROCEEDINGS WHEREUPON BEFORE JUSTICE; NEGLECT TO PROSECUTE &c.; APPEAL DISMISSED; RECORD REMITTED; JUDGMENT FOR COSTS; APPEAL STRUCK OFF BY JUSTICE; PROCEED- INGS THEREUPON BEFORE JUSTICE; JUDGMENT HOW COLLECT- ED: If the appellant shall not duly enter his appeal in Court, it shall be abated ; and on production of the Prothonotary's certificate, under seal, made after the next term of the Court following the appeal, showing that it has not been regularly entered, the justice shall strike off the appeal. Also, if after entering an appeal the appellant shall neglect to prosecute it, or fail to com- ply with any rule, or make other default, so that in a like case, in any other suit in Court, a non-suit, non pros, or judgment by default would be entered, the Court shall dismiss the appeal, and remit the record to the justice, and give judgment for the respondent for costs; whereupon the justice shall strike off the appeal.
Whenever an appeal shall be so struck off, the justice shall, upon application of the creditor, issue execution upon the judgment with the costs on the appeal added, against both defendant and sureties, as is provided in Section 20, respecting other sure- ties of record. If it shall appear by the return to such execution that no goods can be found sufficient to satisfy the same or any balance thereof exceeding $5.00, besides interest and costs, the appellee, or his executors or administrators, may file a duly certified transcript of the docket entries of the judgment and execution with the Prothonotary of the Superior Court in the County where such judgment was given ; and the Prothonotary shall enter in his judgment docket the name of the party and surety or sureties, the amount of the judgment, and by what Justice rendered, the time from which interest runs, and the amount of the costs, with the true date of such filing and entry, and such judgment so transferred shall from that date become and be a lien on all the real estate of the debtor and the surety in the county, in the same manner and as fully as judgments rendered in said Superior Court are liens, and may be executed and enforced in the same way as judgments of the said Court; and any joint debtor or surety shall be entitled to the remedies provided by Chapter 81 of the Revised Code of the State of Delaware, as amended."
Approved April 2, A. D. 1925.