TITLE 10

Courts and Judicial Procedure

Justices of the Peace

CHAPTER 95. PROCEDURE

Subchapter II. Civil Actions for Debt


The proceeding in any civil action for debt, as described in § 9301 of this title, shall be by summons, or attachment.

Code 1852, §§ 2064, 2065; 21 Del. Laws, c. 302; 24 Del. Laws, c. 241; 27 Del. Laws, c. 278; Code 1915, § 4006; Code 1935, § 4492; 10 Del. C. 1953, § 9521.;

The writ of summons in an action under this subchapter shall be issued under the seal of the Justice of the Peace Court, dated on the day it is issued, stating the sum demanded, and the date for the defendant's appearance, which shall be made by the filing of any written motion or pleading purporting to be responsive to, or affecting, the complaint, no later than 15 days from the date received.

Code 1852, §§ 2064, 2065; 21 Del. Laws, c. 302; 24 Del. Laws, c. 241; 27 Del. Laws, c. 278; Code 1915, § 4006; Code 1935, § 4492; 10 Del. C. 1953, § 9522; 59 Del. Laws, c. 540, § 2; 69 Del. Laws, c. 429, § 4.;

The summons in an action under this subchapter shall be of the following form:

"________ County, ss. The State of Delaware.

"TO ANY CONSTABLE OF SAID COUNTY OR OTHER DULY APPOINTED PROCESS SERVER:

"We command you to summon ________, the defendant(s), and serve upon said defendant(s) a copy of this summons and complaint.

"TO THE DEFENDANT(S):

"Within 15 days after you receive this summons, excluding the day you receive it, you must complete and return to the Justice of the Peace Court, all or part of the money claimed as a debt against you by the plaintiff in the complaint.

"Failure to file an answer, or other written document related to this claim, with the Justice of the Peace Court may result in a default judgment being entered against you and action may be taken by the plaintiff, such as the attachment of your wages or the attachment and sale of your property, to satisfy the judgment.

"DATED: _______________________

"Justice of the Peace/Clerk"

Code 1852, §§ 2064, 2065; 21 Del. Laws, c. 302; 24 Del. Laws, c. 241; 27 Del. Laws, c. 278; Code 1915, § 4006; Code 1935, § 4492; 10 Del. C. 1953, § 9523; 69 Del. Laws, c. 429, § 5.;

(a) Service of a summons in an action under this subchapter upon an individual other than an infant or an incompetent person, shall be made by delivering a copy of the summons, with accompanying papers, if any, to the individual personally or by leaving a copy thereof together with the accompanying papers, if any, at the individual's dwelling house or usual place of abode in the presence of some person of suitable age and discretion residing therein, or by sending a copy of the summons with accompanying papers, if any, to the individual by certified mail, return receipt requested, or by delivering copies thereof to an agent authorized by his or her appointment or by law, to receive service of process, at least 4 days before the day of appearance, unless it be returnable "forthwith," but service, by leaving a copy, shall not be made of any warrant returnable forthwith, nor in respect to any defendant who has not at the time a fixed place of abode in the county.

(b) The service and the manner of service shall be stated in the return thus, "served personally" by the justice of the peace constable or duly authorized special process server or "served by leaving a copy at the defendant's dwelling house or usual place of abode in the presence of A.B., a person of suitable age and discretion residing therein," with the date of such service, or "served by certified mail, return receipt requested," and a judgment by default shall not be rendered until the service shall be verified by:

(1) The constable's verification in writing in a form acceptable to the Court;

(2) The special process server's affidavit in writing; or

(3) The certified mail return receipt signed by the defendant, or by some person of suitable age and discretion, as agent for the defendant; or

(4) If the certified mail return receipt is returned marked "unclaimed", or "refused", or with some other indication of failed service, the court shall send a copy of the complaint and summons to the defendant by first class mail to the address provided by the plaintiff. In addition, at the discretion of the presiding judge, the court constable may attempt to confirm that the address provided is that of the defendant and, if confirmed, will attempt personal service. In the event the constable is directed to confirm the address and does so, but is unable to effect personal service, the constable will affix the complaint and summons to the entrance of the dwelling, and note such method of service on the return. In the event of an application for a default judgment after such service, the Court may proceed pursuant to § 9537 of this title whether personal service is completed or not.

Code 1852, §§ 2066, 2067; Code 1915, § 4008; Code 1935, § 4494; 10 Del. C. 1953, § 9524; 56 Del. Laws, c. 223, § 1; 59 Del. Laws, c. 540, § 3; 66 Del. Laws, c. 415, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 232, § 3; 76 Del. Laws, c. 27, § 1; 76 Del. Laws, c. 238, §§ 1, 2.;

(a) No civil action shall be brought before any justice of the peace, in this State, unless the person bringing such action first makes a deposit of $5.00 with the justice of the peace before whom the person brought the action, to be applied to the costs of such action. The sum deposited shall be returned to the person depositing the same, if the money sued for is recovered.

(b) Where the person bringing the action under this subchapter is a corporation, the action may be prosecuted by an officer or employee of the corporation who need not be a duly licensed attorney-at-law provided, however, that officer or employee is duly qualified under Delaware Supreme Court Rule 57.

27 Del. Laws, c. 279; Code 1915, § 4007; Code 1935, § 4493; 10 Del. C. 1953, § 9525; 55 Del. Laws, c. 20, § 9; 57 Del. Laws, c. 224, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 27, §§ 2, 3.;

In an action under this subchapter, the time appointed in the summons for the defendant's appearance shall be the day for hearing the cause.

Code 1852, § 2069; Code 1915, § 4009; 34 Del. Laws, c. 221, § 2; Code 1935, § 4495; 10 Del. C. 1953, § 9526.;

(a) A hearing in an action under this subchapter may be adjourned to some day other than the date referred to in § 9526 of this title, but the adjournment shall not be for more than 15 days. Such adjournments may be made as are necessary for a fair trial.

(b) The justice of the peace shall fix the time of adjournment so as to bring the cause to as speedy a trial as the circumstances will admit.

(c) The justice shall, except as provided in § 9528 of this title, grant 1 adjournment to the defendant, of course, and other adjournments to either party, if it shall appear to the justice's satisfaction, by the oath, or affirmation, of the party applying for it, or otherwise, that such party is not prepared for trial, and that the party's want of preparation is not owing to design, or to not using due diligence.

(d) After a second adjournment, the party applying for a further adjournment, shall pay the costs accruing on the day of such application, unless the justice makes a special order that the costs, or any part of them, shall abide the result of the cause.

Code 1852, §§ 2070, 2071; Code 1915, § 4009; 34 Del. Laws, c. 221, § 2; Code 1935, § 4495; 10 Del. C. 1953, § 9527; 70 Del. Laws, c. 186, § 1.;

In an action under this subchapter, if the summons is made returnable "forthwith," the justice may refuse to grant any adjournment on the defendant's application, unless the defendant gives special bail as follows:

"A. B. becomes special bail for C. D., the defendant in this action.

(Signed) A. B.''

Code 1852, § 2069; Code 1915, § 4009; 34 Del. Laws, c. 221, § 2; Code 1935, § 4495; 10 Del. C. 1953, § 9528.;

Special bail shall be discharged if the defendant appears, or is surrendered before the justice, on the day to which the cause is adjourned, and pays and satisfies any judgment rendered against him or her in such proceedings.

Code 1852, § 2073; 19 Del. Laws, c. 776, § 1; Code 1915, § 4009; 34 Del. Laws, c. 221, § 2; Code 1935, § 4495; 10 Del. C. 1953, § 9529; 70 Del. Laws, c. 186, § 1.;

(a) If special bail is not discharged as provided by § 9529 of this title, and it appears, by the return upon any execution, that goods sufficient to satisfy the judgment cannot be found, proceedings by scire facias, in the form prescribed by § 9577 of this title, may be had against the bail.

(b) The scire facias shall be served on the bail, as provided in respect to service of a summons, at least 4 days before its return. If so served, or if it appears by the return to 2 successive writs of scire facias, that service cannot be made, the justice may proceed to give judgment against the defendant by default, unless the defendant appears; the returns to the writ, or writs, of scire facias, being first verified by affidavit.

(c) The affidavit shall state, in substance, that the constable has made diligent search for the defendant in the scire facias, and cannot find the defendant, nor hear that the defendant has any place of abode in the county.

(d) If the defendant appears, the cause shall proceed as in other cases; but a judgment against the defendant may be for the full amount of the original judgment against the defendant's principal, inclusive of interests and costs, though that should exceed $500.

Code 1852, §§ 2074-2080; 18 Del. Laws, c. 678, § 1; 19 Del. Laws, c. 776, § 2; Code 1915, § 4009; 34 Del. Laws, c. 221, § 2; Code 1935, § 4495; 10 Del. C. 1953, § 9530; 70 Del. Laws, c. 186, § 1.;

(a) In an action under this subchapter, if it appears, by affidavit, that there is a material witness residing out of the county, whose attendance it is not practicable to procure, the justice may make a rule that such witness's deposition be taken before a justice of the peace sitting in the county in which the witness resides.

(b) Unless it is otherwise agreed, the party applying for a rule that a deposition be taken shall file in writing all the questions to be put to the witness, giving at least 4 days' notice to the other party, who may file other questions.

(c) The justice shall forward a copy of the rule and the questions to the justice of the peace selected with a copy of this section.

(d) The deposition shall be taken in writing, signed by the witness, certified by the justice of the peace selected, and sent, sealed up, to the justice.

(e) The witness shall first be sworn, or affirmed, by the justice of the peace selected, to answer the questions truly. Neither party shall be present at the taking the deposition, and no questions shall be put but those sent by the justice.

Code 1852, § 2180; Code 1915, § 4052; Code 1935, § 4539; 10 Del. C. 1953, § 9531; 55 Del. Laws, c. 20, § 10; 70 Del. Laws, c. 186, § 1.;

(a) A subpoena for attendance of witnesses in actions under this subchapter shall be in this form:

"............. County, ss. The State of Delaware,

To any constable, greeting:

Summon A. B. and C. D., to appear before......... one of our justices of the peace, at said justice's office in.......... on....... the....... day of..... at..... o'clock in the........., to give evidence in a cause between A. B., plaintiff and C. D. defendant, depending before our said justice; and this they may not omit at their peril.

*   *   * *

*                  *                          Witness the hand and seal of the said Justice the

*    L. S. * ____________ day of ____________ A.D. 20_____''

*                  *

*   *   * *

(b) The summons for referees may be in the same form, substituting the words "to try,'' for the words "to give evidence in.''

Code 1852, §§ 2177, 2178; Code 1915, § 4051; Code 1935, § 4538; 10 Del. C. 1953, § 9532; 55 Del. Laws, c. 20, § 11; 70 Del. Laws, c. 186, § 1.;

If a witness, duly summoned, neglects to appear and testify before a justice, or before referees, the witness may, on proof that the witness has been duly summoned, be held in contempt of court under the provisions of § 9506 of this title and, in addition, be required to pay any additional court cost created by the witness' nonappearance.

Code 1852, § 2177; Code 1915, § 4051; Code 1935, § 4538; 10 Del. C. 1953, § 9533; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 27, § 4.;

The form of an attachment under § 9533 of this title for contempt against a witness, shall be as follows:

"........... County, ss. The State of Delaware,

To any constable, greeting:

Bring A. B. before..........., one of our justices of the peace, at a Justice of the Peace Court in the county in which the action was commenced forthwith to show cause why he/she should not be punished under civil contempt as provided by § 9506 of Title 10 of the Delaware Code.

*   *   * *

*                  *                          Witness the hand and seal of the said Justice the

*    L. S. * ____________ day of ____________ A.D. 20_____''

*                  *

*   *   * *

Code 1852, § 2179; Code 1915, § 4051; Code 1935, § 4538; 10 Del. C. 1953, § 9534; 55 Del. Laws, c. 20, § 12; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 27, § 5.;

The distress warrant to be used for levy on a referee's goods and chattels shall be in the following form:

"........... County, ss. The State of Delaware,

To any constable, greeting:

Whereas, C. D. of......... has been adjudged by E. F., one of our justices of the peace, to be guilty of a contempt in making default, after due summons as a referee, in a case pending before said justice, and has been ordered to pay a fine of five dollars in pursuance of the Act of Assembly in such case provided; and whereas, the said C. D. has neglected to pay the said sum:

We therefore command you to levy the said sum of five dollars, with......... costs and your costs hereon, by distress and sale of the goods and chattels of the said C. D., upon due notice given, as upon other execution process.

*   *   * *

*                  *                          Witness the hand and seal of the said Justice the

*    L. S. * ____________ day of ____________ A.D. 20_____''

*                  *

*   *   * *

Code 1852, § 2087; Code 1915, § 4013; Code 1935, § 4499; 10 Del. C. 1953, § 9539; 55 Del. Laws, c. 20, § 13.;

(a) In every action before a justice of the peace, within the justice's jurisdiction, the defendant, if he or she has against the plaintiff any account, demand, or cause of action, cognizable before a justice of the peace, shall bring it forward and plead it as a setoff; and the justice shall enter on the docket the nature and amount of such counterclaim. Any defendant, neglecting to do so, shall, if the action against him or her be prosecuted to judgment, lose such account, demand, or cause of action, and be forever barred from recovering it.

(b) If the defendant has any account, demand or cause of action, against the plaintiff, exceeding $15,000, the defendant may bring it forward and plead it as a setoff as specified in subsection (a) of this section, or not, at the defendant's pleasure, and shall not, by neglecting so to plead it, lose such cause of action.

(c) If the defendant pleads a setoff exceeding $15,000, and it is found on the trial, that there is any sum due the defendant from the plaintiff, judgment shall be given against the plaintiff, in the defendant's favor, for such sum, provided it does not exceed $15,000. If it exceeds $15,000, that fact shall be stated on the record, and judgment shall be given for costs for the defendant, who shall be at liberty to prosecute such cause of action in court; or such defendant may remit the excess above $15,000, and take judgment for that sum.

Code 1852, §§ 2089-2091; 18 Del. Laws, c. 678, § 1; Code 1915, § 4014; 34 Del. Laws, c. 221, § 3; Code 1935, § 4500; 10 Del. C. 1953, § 9540; 55 Del. Laws, c. 297, § 5; 57 Del. Laws, c. 192, § 5; 65 Del. Laws, c. 30, § 1; 67 Del. Laws, c. 426, § 4; 69 Del. Laws, c. 425, § 4; 70 Del. Laws, c. 186, § 1.;

(a) After verification of the return of service, if a defendant, being duly summoned, fails to appear by written motion or pleading at or before the date provided for in the summons or at any time to which the cause is regularly adjourned judgment by default may be entered. The amount of damages awarded shall be the amount proven to be properly due. Such proof may be by affidavit or, when judgment is entered by the Court, by such other information as may be required by the Court. A default judgment may be entered as follows:

(1) By the clerk. — When the plaintiff's claim is (i) based upon a written instrument from which the defendant's agreement to pay the amount claimed can be determined from the face of the instrument or from calculations therefrom or (ii) for a civil penalty payable to the State or any subdivision thereof, a mandatory dollar amount of which is specified by statute, the clerk, upon written application of the plaintiff and upon affidavit of the amount due, giving credit for any payments and showing the amounts and dates thereof and a computation of any applicable interest to the date of judgment, may enter judgment for that amount and costs against the defendant.

(2) By the Court. — When entry of judgment may not be made by the clerk pursuant to paragraph (a)(1) of this section or when the Court, in its discretion, determines that entry of the default judgment should be made by the Court, the Court may enter the judgment. When entered by the Court, the Court may make investigation into and determine the amount of damages properly due. If in order to enable the Court to enter judgment, carry it into effect, or determine the amount of damages, it is necessary to establish the truth of any averment by evidence or to make an investigation of any matter, the Court may conduct such hearings or order such references as it deems necessary and proper.

(b) No judgment shall be given against an executor, or administrator, as such, by default, until the plaintiff produces the obligation, note, or contract of the deceased, or a book of accounts regularly and fairly kept, and verified by oath or affirmation, or other sufficient proof, and a probate regularly made; and a book of accounts shall not be received for cash entries, or items not properly chargeable in account.

Code 1852, § 2081; Code 1915, § 4011; Code 1935, § 4497; 10 Del. C. 1953, § 9541; 69 Del. Laws, c. 429, § 6; 73 Del. Laws, c. 337, § 1.;

(a) A defendant may, within 15 days after the day of giving a judgment by default, apply to the court to vacate the judgment, and let the parties into a trial, provided however that a defendant may, within 30 days after a judgment by default, apply to have the judgment vacated, if service was made by certified mail, return receipt requested, and the certified mail was returned unclaimed.

(b) The plaintiff, or the plaintiff's agent, if in the county, shall have notice of the defendant's application, and of the time set for hearing it.

(c) If, upon the hearing, the justice is satisfied that there ought to be a trial, and that the defendant was not guilty of wilful negligence in letting judgment go against the defendant by default, the application shall be granted, and a day appointed for the trial, whereof the plaintiff, or the plaintiff's agent, shall have notice.

(d) The notice may in either case, be given and proved by the constable.

Code 1852, § 2082; Code 1915, § 4011; Code 1935, § 4497; 10 Del. C. 1953, § 9542; 66 Del. Laws, c. 415, § 2; 69 Del. Laws, c. 429, § 7; 70 Del. Laws, c. 186, § 1.;

If a plaintiff litigating a civil suit fails to appear at any proceeding scheduled by the Court, the Court shall either: enter a nonsuit judgment, which may be taken off in like manner as a judgment by default; dismiss the action according to court rule; or adjourn the matter for further proceedings, as the circumstances direct.

Code 1852, § 2083; Code 1915, § 4011; Code 1935, § 4497; 10 Del. C. 1953, § 9543; 76 Del. Laws, c. 27, § 6.;

Every justice of the peace, upon entering judgment upon any cause of action arising from any promissory note, bank check or due bill, or other evidences of indebtedness under the hand of the debtor, shall endorse on such cause of action the year, month and day of entering such judgment, with a reference to the docket, showing the page of such docket, and the number of such judgment, and shall file such cause of action in his or her office, which cause of action shall be a part of the record.

18 Del. Laws, c. 677, § 1; Code 1915, § 4010; Code 1935, § 4496; 10 Del. C. 1953, § 9544; 70 Del. Laws, c. 186, § 1.;

(a) Whichever party recovers judgment shall recover that party's costs of suit, to be allowed and collected by force of the judgment, as a part thereof.

(b) If plaintiff, upon claiming a new trial, recovers no more than $5.00, exclusive of costs, the defendant shall be allowed his or her costs in the new trial.

(c) If the plaintiff is nonsuited, or discontinues or withdraws his or her action, judgment shall be given for the defendant for costs.

Code 1852, §§ 2092, 2093; Code 1915, § 4015; Code 1935, § 4501; 10 Del. C. 1953, § 9545; 58 Del. Laws, c. 194, § 8; 70 Del. Laws, c. 186, § 1.;

(a) Every judgment against an executor, or administrator, as such, shall be a judgment of assets, and shall not charge the executor or administrator absolutely, but only in case the executor or administrator, at the time the judgment is rendered, or before, or afterward, has assets which, according to law, ought to be applied to the cause of action.

(b) If an execution on a judgment against an executor or administrator is returned unsatisfied for want of assets, the creditor may sue out a scire facias, upon a suggestion of waste, against the executor or administrator; and if the defendant does not appear and show sufficient cause to the contrary, the defendant shall be deemed guilty of waste and shall be personally liable for the amount of the original judgment, with interest and costs, and judgment and execution shall be awarded accordingly, as for the defendant's own debt. No such scire facias shall be issued until after the lapse of 1 year from the grant of letters of administration to the defendant.

(c) In all cases in which a question of assets shall be determined, that question shall be tried by the justice, and not by referees.

Code 1852, §§ 2094-2096; Code 1915, § 4016; Code 1935, § 4502; 10 Del. C. 1953, § 9546; 69 Del. Laws, c. 429, § 8; 70 Del. Laws, c. 186, § 1.;

(a) If any defendant in a judgment on warrant of attorney, or attorney's executors, or administrators, by affidavit filed with the justice, denies the obligation, or sets forth any just defense, a trial shall be granted, which shall be conducted as in other cases.

(b) The judgment shall not be vacated, nor any execution, or levy thereon, set aside, until after a trial and determination against such obligation, or warrant.

(c) A levy shall be a security for what may be found due to the plaintiff, the proceedings thereupon being stayed, unless the defendant gives sufficient security to pay the plaintiff the sum justly due.

(d) The security shall be entered as follows:

"On the............. day of......... A.D. 20......, A. B. (and C. D., if two) became surety for the defendant (or defendants) for the payment of whatever is justly due to the plaintiff (or plaintiffs) in this action.''

(e) Upon the entry of security being made and signed, the judgment and execution shall be set aside.

Code 1852, § 2102; Code 1915, § 4020; Code 1935, § 4506; 10 Del. C. 1953, § 9549; 70 Del. Laws, c. 186, § 1.;

(a) Upon every judgment given by the Court against a freeholder of the county, for a sum exceeding $5.00, besides costs, there shall, upon the application of the defendant within 5 days thereafter, be a stay of execution for 6 months, unless a creditor in the judgment, or other credible person, makes and files an affidavit before the justice "that he or she has good ground to apprehend and does verily believe that if the stay of execution be allowed, the sum due by the judgment will be lost''; upon which execution may forthwith issue.

(b) If any of several defendants in such judgment is a freeholder of the county, the provisions of subsection (a) of this section shall apply.

Code 1852, § 2103; 12 Del. Laws, c. 22; Code 1915, § 4021; Code 1935, § 4507; 10 Del. C. 1953, § 9551; 69 Del. Laws, c. 429, § 9; 70 Del. Laws, c. 186, § 1.;

(a) If any defendant against whom a judgment is given for more than $5.00, besides costs, or any freeholder in relation to whom affidavit is made as in § 9544 of this title, gives, within 5 days after giving such judgment, or filing such affidavit, sufficient security to pay the judgment, there shall be a stay of execution thereon for 9 months from that time.

(b) The security shall be entered on the docket in the following form:

"On the........... day of..........., A. D. 20....., A. B., (or A. B. and C. D., if two) becomes surety that this judgment shall be fully satisfied'';

and the entry shall be signed by the surety or sureties.

(c) The entry of security, and the entry prescribed in § 9546 of this title, shall be an obligation of record, and shall oblige the sureties, or their executors or administrators, jointly, or severally, to pay the judgment to which such entry refers, and after the expiration of the stay of execution the judgment may be executed and enforced against the sureties, their executors or administrators, without an action of debt, or a scire facias being first maintained or issued thereupon.

(d) If any defendant, in a judgment against several, is not a freeholder of the county, the foregoing provisions for 9 months' stay on giving security shall apply, although there may be other defendants who are freeholders.

(e) If, in any case, execution has issued before the security is given, the same shall, on giving the security within the 5 days, be superseded and the proceedings thereon quashed.

Code 1852, §§ 2104-2107; Code 1915, § 4022; 34 Del. Laws, c. 222; Code 1935, § 4508; 10 Del. C. 1953, § 9552.;

(a) Whenever a defendant in any judgment described under § 9544 or § 9545 of this title has obtained a stay of execution under the provisions of either of such sections, the plaintiff or plaintiffs in such judgment, may file a duly certified transcript of the docket entries of the judgment, with the prothonotary of the Superior Court, in the county where such judgment was given, and the prothonotary shall enter in the prothonotary's judgment docket, the names of the parties, the amount of the judgment, and by what Justice of the Peace Court rendered, the time from which interest runs and the amount of the costs, with the true date of such filing and entry.

(b) A judgment transferred under the provisions of this section shall from that date become and be a lien on all the real estate of the defendants, as well as of the sureties, in the county, in the same manner and as fully as judgments rendered in the Superior Court are liens, and may, after the expiration of the stay of execution, be executed and enforced in the same way as judgments of the Court. If any such judgment is lawfully assigned to a joint debtor or surety, the assignee shall have the benefit of this section.

Code 1852, § 2103; 12 Del. Laws, c. 22; Code 1915, §§ 4021, 4022; 34 Del. Laws, c. 222; Code 1935, §§ 4507, 4508; 10 Del. C. 1953, § 9553; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 232, § 4.;

(a) Process of execution may be issued by the Justice of the Peace Court rendering a judgment, or by any other Justice of the Peace Court, with which the docket containing such judgment is deposited, or a duly certified transcript of the record of such judgment is filed.

(b) The process of execution shall bear date of the day it is issued, and shall be made returnable on a day certain, not more than 60, nor less than 30, days, thereafter; but a return of "no goods'' may be made after 2 days from its date.

(c) Process of execution shall be directed to a constable.

Code 1852, §§ 2108, 2109, 2117; 14 Del. Laws, c. 93; Code 1915, § 4023; 40 Del. Laws, c. 237, § 1; Code 1935, § 4509; 43 Del. Laws, c. 230; 10 Del. C. 1953, § 9554; 55 Del. Laws, c. 20, § 14; 70 Del. Laws, c. 232, § 5; 75 Del. Laws, c. 282, § 2.;

The form of execution process will be as prescribed by the Court and shall be issued in the manner provided by law.

Code 1852, §§ 2110-2112, 2116; Code 1915, § 4023; 40 Del. Laws, c. 237, § 1; Code 1935, § 4509; 43 Del. Laws, c. 230, § 1; 10 Del. C. 1953, § 9555; 55 Del. Laws, c. 20, § 15; 70 Del. Laws, c. 232, § 6.;

(a) The day fixed for the garnishees' appearance shall not be less than 5 days from the date, nor shall it be after the return day of the execution.

(b) The garnishee summoned on any execution, or other attachment, shall be bound to plead, or answer, concerning any credits, money or rights arising from any agreement, or contract, for personal labor, hire or services of the defendant for which the garnishee is accountable to the defendant, after the garnishee is so summoned to answer and until the judgment with costs has been paid.

Code 1852, §§ 2113, 2114; Code 1915, § 4023; 40 Del. Laws, c. 237, § 1; Code 1935, § 4509; 43 Del. Laws, c. 230, § 1; 10 Del. C. 1953, § 9556; 60 Del. Laws, c. 619, § 1; 70 Del. Laws, c. 186, § 1.;

(a) Any person summoned to answer under an execution attachment as a garnishee of another, to whom such person is indebted in a sum exceeding the amount cognizable before a justice of the peace, or any creditor of such garnishee, may, with the answer or plea admitting or denying such indebtedness, require the justice of the peace to enter upon his or her docket a plea that such attachment process has been taken against such garnishee by collusion between the plaintiff and the defendant in the judgment upon which such execution attachment is or shall be issued, and for a claim not actually due from such defendant, or confessed, contracted, incurred, or made for the occasion, or upon a judgment upon a claim, or for a debt made by dividing or splitting up a claim or debt not primarily cognizable by reason of its amount before a justice of the peace, for the purpose of bringing the same under or within the jurisdiction of a justice or justices of the peace.

(b) Upon such plea, as well as upon any plea of "nulla bona'' entered in the cause, the justice shall enter an issue or issues, which shall be tried and determined as other cases cognizable before the justice.

(c) If either of the issues is found for the defendant, the garnishee judgment shall be entered against the attaching creditor for the costs, otherwise, it shall be entered as in other cases.

(d) Nothing in this section shall prevent the giving of a credit upon a claim, so as to reduce it to a sum within the jurisdiction of a justice of the peace.

14 Del. Laws, c. 92, §§ 1, 4; Code 1915, § 4024; Code 1935, § 4510; 10 Del. C. 1953, § 9557; 70 Del. Laws, c. 186, § 1.;

(a) In any proceeding under § 9550 of this title, either party may have an appeal, as in other cases.

(b) Any creditor of the garnishee, in case of judgment against the latter, may cause an appeal to be entered and carried on in the name of the garnishee upon special application to the justice in that behalf, upon becoming bound with surety to the satisfaction of the justice for the prosecution of the appeal, etc., as in other cases; in which case the garnishee shall be indemnified for all costs arising upon the appeal.

(c) Any creditor who makes a defense in the original proceedings before the justice shall likewise, before being admitted to defend, give security to the satisfaction of the justice for any legal costs which may be incurred in making such defense in case it proves unsuccessful.

(d) In the prosecution of the appeal in the Court of Common Pleas, any defense which might be made before the justice may be made before the Court.

14 Del. Laws, c. 92, §§ 2, 3; Code 1915, § 4024; Code 1935, § 4510; 10 Del. C. 1953, § 9558; 69 Del. Laws, c. 423, § 6; 70 Del. Laws, c. 186, § 1.;

An execution shall not bind goods and chattels until it is delivered to the constable or other officer to be executed. An execution shall, from the time it is so delivered, bind all the goods and chattels of the defendant, within the bailiwick of such constable or other officer which are actually levied upon within 30 days thereafter. No levy upon goods and chattels, made by virtue of execution process, shall be of any force or effect as against a subsequent execution levied upon the same goods and chattels for a longer period than 3 years from the making of such first mentioned levy.

Code 1852, § 2122; 13 Del. Laws, c. 161, §§ 1, 2; Code 1915, § 4027; Code 1935, §§ 4511, 4513; 10 Del. C. 1953, § 9559; 70 Del. Laws, c. 232, § 7; 77 Del. Laws, c. 295, § 1.;

(a) The goods and chattels seized by virtue of an execution issued by a Justice of the Peace Court shall be inventoried and appraised by the officer levying the same.

(b) The property which any debtor is entitled to have set apart under any exemption law of the State shall be set apart and delivered to the debtor at the time when the levy and appraisement is made, in the manner provided by law if requested by the debtor pursuant to Chapter 49 of this title.

Code 1852, § 2122; 13 Del. Laws, c. 161, § 1; 14 Del. Laws, c. 555; Code 1915, § 4027; Code 1935, § 4511; 10 Del. C. 1953, § 9560; 70 Del. Laws, c. 232, § 8.;

(a) The goods and chattels taken on execution issued by a Justice of the Peace Court shall not be sold until 10 days after the appraisement, nor until they are advertised for at least 10 days, in at least 5 of the most public places in the neighborhood, by advertisements setting forth the goods to be sold, and the day, hour and place of sale.

(b) One advertisement shall be delivered to every person whose goods are to be sold, and to the defendant's landlord, or to the landlord's agent if there is one residing within the county.

(c) One advertisement shall be delivered to the sheriff of the county.

(d) One such advertisement shall be delivered to each plaintiff in the execution, and also to each plaintiff in any other execution or executions at the time in the hands of the constable, or sheriff, or shall be left at the usual place of abode of such plaintiff, respectively, if there is such place of abode within the county.

(e) If any plaintiff in any such execution resides out of the county, the advertisement shall be transmitted to such plaintiff by mail, being enclosed and addressed to such plaintiff at the post office nearest such plaintiff's place of abode at least 10 days before the day of sale.

Code 1852, § 2122; 13 Del. Laws, c. 161, § 1; Code 1915, § 4027; Code 1935, § 4511; 10 Del. C. 1953, § 9561; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 232, § 9.;

If several executions against the same defendant are delivered on the same day, the first delivered shall have priority. If several executions against the same defendant are delivered together, they shall have priority according to their respective numbers.

70 Del. Laws, c. 232, § 10.;

(a) A constable, or other officer, receiving an execution, shall, in a docket, set down the date of receiving it; and when several executions are delivered on the same day, the docket shall show the order in which they are received. The constable or other officer shall also endorse upon an execution, immediately on receiving it, the precise time the officer received delivery of the execution.

(b) The officer to whom an execution issued by a Justice of the Peace Court is delivered shall duly return it with a certificate of all the officer's proceedings, and a statement of the officer's fees, giving the items.

(c) If no levy is made, the reason shall be given.

(d) If the levy has been made, an inventory and appraisement shall be returned, and shall state as whose property the goods and chattels were seized in execution.

(e) In case of a sale the list of the goods and chattels sold, with the amount thereof, shall be returned.

Code 1852, § 2128; 14 Del. Laws, c. 85; Code 1915, § 4029; Code 1935, § 4515; 10 Del. C. 1953, § 9563; 70 Del. Laws, c. 232, § 11.;

(a) If there has been a levy made, but no sale, then an execution of venditioni exponas shall be issued at the request of any party entitled to the judgment.

(b) A copy of the inventory and appraisement shall accompany the writ of venditioni exponas.

(c) The writ may be directed to the sheriff if the original execution was so directed.

(d) The issuing of a venditioni exponas shall not discharge the officer to whom the former execution was delivered, from any liability incurred by neglect, or default, in respect to it.

(e) After 1 execution of venditioni exponas has been issued, the defendant shall not be charged with any fees upon any further execution of venditioni exponas, and such fees shall be paid by the plaintiff.

(f) If the officer to whom the first writ for the sale of the goods is delivered, does not use due diligence and all proper means to effect a sale, the officer shall be charged with the amount of such execution as if the officer had returned a sale sufficient to satisfy the same.

(g) In effecting a sale of goods, the officer shall conduct the sale in a commercially reasonable manner, which may include, but is not limited to, personally auctioning the goods according to procedures established by the Justice of the Peace Court; offering the goods through a commercial auction house; or by providing for other auction services. In the event that the officer does not personally conduct the sale, all costs of the sale, except those provided for in Justice of the Peace Court rules, shall be deducted from the proceeds of the sale, or otherwise borne by the party requesting the sale.

Code 1852, §§ 2129-2131; Code 1915, § 4029; Code 1935, § 4515; 10 Del. C. 1953, § 9564; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 239, § 1; 77 Del. Laws, c. 240, § 1.;

The venditioni exponas shall be in the following form:

"............. County, ss. The State of Delaware.

To any constable, greeting:

We command you that after giving due notice, you sell, at public vendue, the goods and chattels specified in the schedule hereto annexed, for the purpose of satisfying a judgment recovered on the....... day of........ 20...., before A. B., one of our justices of the peace, by C. D. against E. F. for the sum of........ on interest from the......... and the further sum of.......... costs of suit, and......... fees on the former execution, and your fees on this process, or so much of said goods and chattels as shall be sufficient for said purposes, after discharging prior liens, if any, which goods and chattels have been levied on by virtue of an execution issued on the said judgment and dated the......... day of......... 20...., and that you return this execution, and your doings hereon plainly set forth to........., one of our justices of the peace aforesaid, on the......... day of...........

*   *   * *

*                  *                          Witness the hand and seal of the justice last named,

*    L. S. * the ____________ day of A.D. 20_____''

*                  *

*   *   * *

Code 1852, § 2129; Code 1915, § 4029; Code 1935, § 4515; 10 Del. C. 1953, § 9565; 55 Del. Laws, c. 20, § 16.;

If any sheriff, or constable, to whom an execution is duly delivered, neglects to return the same according to the command thereof, or to return his or her doing thereon plainly set forth, as required by §§ 9556-9558 of this title, or to annex an inventory and appraisement as required by § 9557 of this title, he or she shall be liable for the amount of the execution as if he or she had levied and received the same. Liability may be enforced by action on the official obligation of the sheriff, or constable, or proceedings may be had against such constable before a justice of the peace, according to § 9561 of this title.

Code 1852, § 2132; Code 1915, § 4030; Code 1935, § 4516; 10 Del. C. 1953, § 9566; 70 Del. Laws, c. 186, § 1.;

If any sheriff, or constable, levies or receives any sum of money by virtue of an execution issued by a justice of the peace, and does not pay such proceeds on demand to the person entitled to receive them, he or she shall pay to such person at the rate of 20 percent per annum from the time of such demand, to be added to the sum so levied, or received, in any suit brought for its recovery.

Code 1852, § 2133; Code 1915, § 4031; Code 1935, § 4517; 10 Del. C. 1953, § 9567; 70 Del. Laws, c. 186, § 1.;

(a) If any constable, to whom an execution is delivered, does not, at or before the time it is returnable, produce the receipt of the party entitled to the benefit thereof, for the amount levied thereon, or makes an insufficient or a false return thereto, the justice shall, on request, issue a summons to a constable, or any other person, or to the sheriff, requiring the defaulting constable to appear before him or her at a time fixed, within 10 days thereafter, to show cause why an execution should not issue against him or her for the amount of the debt he or she was required by such execution to levy. The summons shall be served in the same way as an original summons.

(b) If the constable neglects to appear as required, or does not show sufficient cause why the execution should not issue against him or her, the justice shall, on proof of service of the summons, enter judgment against the constable for the amount of the debt he or she was required by such execution to levy, together with costs. There shall be no stay of execution on the judgment, and the justice shall, on request, issue an execution as in other cases.

(c) The remedy of this section is cumulative, and shall, in no manner, affect the responsibility of the constable or the constable's sureties on his or her official bond.

Code 1852, §§ 2134-2136; Code 1915, § 4032; Code 1935, § 4518; 10 Del. C. 1953, § 9568; 70 Del. Laws, c. 186, § 1.;

There shall be a judgment and execution docket for each Justice of the Peace Court, the size, type and mode of said dockets to be as prescribed by the Chief Magistrate.

12 Del. Laws, c. 91; Code 1915, § 4028; Code 1935, § 4514; 10 Del. C. 1953, § 9569; 55 Del. Laws, c. 20, § 17; 55 Del. Laws, c. 85, § 32Y; 65 Del. Laws, c. 173, § 1.;

Every justice of the peace shall make a fair entry, in a judgment docket, of every action commenced before him or her, therein setting down the names of the parties, the cause of action, the sum demanded, the day of issuing process and when it is returnable, the return, and in case of a "forthwith'' summons the day of the return, every adjournment and the day to which the trial is adjourned, any setoff pleaded and the amount thereof, the names of the referees if any are appointed, the sum of the referees' report and for which party, the amount of the judgment and for which party, the costs regularly taxed, entries of bail, or of security, and the issuing of any execution, and the date thereof.

Code 1852, § 2124; Code 1915, § 4028; Code 1935, § 4514; 10 Del. C. 1953, § 9570; 70 Del. Laws, c. 186, § 1.;

Every justice of the peace shall make a fair entry of every execution issued by such justice of the peace, setting down the names of the parties, the day of issuing, and the day when it is returnable, the debt and the costs, how directed, and to whom delivered, and when returned, a copy of the return, and the amount of any appraisement, and a note of any further proceedings.

Code 1852, § 2125; Code 1915, § 4028; Code 1935, § 4514; 10 Del. C. 1953, § 9571; 65 Del. Laws, c. 173, § 2; 70 Del. Laws, c. 186, § 1.;

The indexing of the judgment and execution dockets shall be as prescribed by the Chief Magistrate.

Code 1852, § 2126; Code 1915, § 4028; Code 1935, § 4514; 10 Del. C. 1953, § 9572; 65 Del. Laws, c. 173, § 3.;

Whenever it appears by the return to, or the proceedings upon, any execution, that a judgment is satisfied, the justice, who has the judgment docket, shall make an entry of the satisfaction thereon, if such return or proceedings are before him or her.

Code 1852, § 2127; Code 1915, § 4028; Code 1935, § 4514; 10 Del. C. 1953, § 9573; 70 Del. Laws, c. 186, § 1.;

(a) The creditor in any judgment before a justice of the peace, receiving satisfaction thereof in any manner other than from an officer in pursuance of an execution, shall cause satisfaction of such judgment to be entered on the docket thereof within 90 days after receiving the same. Any officer receiving the amount of a judgment after the execution returned, so that the receipt does not appear by the return, shall, within 90 days after the receipt, cause the same to be entered upon the docket of the judgment, and of the execution.

(b) Whoever neglects the duty imposed by this section shall forfeit and pay to the debtor in the judgment, or the debtor's executors, or administrators, any sum not exceeding one-half the judgment determined in the case.

Code 1852, § 2176; Code 1915, § 4050; Code 1935, § 4537; 10 Del. C. 1953, § 9574.;

Repealed by 70 Del. Laws, c. 232, § 12, effective July 14, 1995.;

(a) Judgments entered into the judgment docket in the Justice of the Peace Courts shall not constitute a lien upon real estate, but the judgment creditor may file a duly certified transcript of the docket entries of the judgment in the office of the prothonotary of the Superior Court in any or all of the 3 counties of the State and the prothonotary shall enter in his or her judgment docket the names of the parties, the amount of the judgment, the name of the court in which the judgment was recovered, the time from which interest runs and the amount of the costs, with the true date of filing and entry. The prothonotary, in his or her discretion, may allow transfer of judgments as provided in this subsection to be accomplished by electronic means.

(b) A judgment, transferred, as authorized by subsection (a) of this section, shall, from that date, become and be a lien on all the real estate of the debtor in the county, in the same manner and as fully as judgments rendered in the Superior Court are liens, and may be executed and enforced in the same way as judgments of that Court.

(c) If any judgment is lawfully assigned to a joint debtor, or surety, the assignee shall have the benefit of this section.

(d) Once a judgment has been transferred as provided in subsection (a) of this section, the Justice of the Peace Courts shall retain jurisdiction for purposes of all post-judgment proceedings with the exception of execution upon the judgment and/or the sale of real estate.

Code 1852, § 2137; Code 1915, § 4033; Code 1935, § 4520; 10 Del. C. 1953, § 9576; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 35, §§ 1, 2.;

(a) A party against whom a judgment is given by a justice of the peace may appeal to the Court of Common Pleas if the judgment is given without a referee trial, and the amount exceeds $5.00, exclusive of costs.

(b) A plaintiff or defendant, as the case may be, may appeal to the Court of Common Pleas on a judgment given by a justice of the peace if the judgment is given without a referee trial, and any part of the plaintiff's demand, or the defendant's counterclaim or setoff, exceeding $5.00 is disallowed or defalked.

Code 1852, § 2138; 11 Del. Laws, c. 225, § 2; Code 1915, § 4034; Code 1935, § 4521; 10 Del. C. 1953, § 9577; 58 Del. Laws, c. 194, § 7; 69 Del. Laws, c. 423, § 7.;

(a) From any final order, ruling, decision or judgment of the Court in a civil action there shall be the right of appeal to the Court of Common Pleas of the State in the county in which said order, ruling, decision or judgment was rendered.

(b) The appeal shall be taken within 15 days of the final order, ruling, decision or judgment.

(c) The appeal shall be a trial de novo.

(d) The Court of Common Pleas shall establish appeal procedures and supersedeas bond requirements by rule.

Code 1852, §§ 2139, 2141; Code 1915, § 4035; 34 Del. Laws, c. 223, § 1; Code 1935, § 4522; 10 Del. C. 1953, § 9578; 54 Del. Laws, c. 242; 65 Del. Laws, c. 40, § 1; 65 Del. Laws, c. 308, § 1; 68 Del. Laws, c. 53, § 4; 69 Del. Laws, c. 423, § 8.;

(a) The appellant shall have the appellant's appeal entered in the Court of Common Pleas of the county where the judgment was given within the time and in the manner provided by the rules of that Court, and the Clerk of Court shall docket the action and issue process in accordance with the rules of the Court. When the appeal is entered, the Court of Common Pleas shall have jurisdiction and take cognizance thereof, and the pleadings and proceedings thereafter shall be as in other civil actions commenced in the Court, except as otherwise provided in this section.

(b) In the appeal each party may make demands against the other, and the Court or jury by its or their verdict may find a sum either for plaintiff, or defendant, but not for an amount exceeding $15,000, exclusive of interest and costs, unless such party has claimed more than that sum before the justice. Judgment shall be rendered accordingly.

(c) If a judgment is rendered against an appellant, or the appellant's executors or administrators, the Clerk of Court shall enter judgment against the sureties or their executors or administrators for the amount entered against the appellant, or the appellant's executors or administrators, and as a part of the same judgment. A judgment so entered shall from that date become 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 the Court of Common Pleas are liens, and may be executed and enforced in the same way as other judgments in that Court.

(d) A surety or the surety's executors or administrators shall be entitled to the remedies provided in subchapter II of Chapter 77 of Title 18.

Code 1852, §§ 2142, 2143; 11 Del. Laws, c. 225, § 2; 18 Del. Laws, c. 678, § 1; Code 1915, § 4036; 35 Del. Laws, c. 222; Code 1935, § 4523; 10 Del. C. 1953, § 9580; 55 Del. Laws, c. 297, § 7; 57 Del. Laws, c. 192, § 7; 65 Del. Laws, c. 30, § 2; 67 Del. Laws, c. 426, § 5; 68 Del. Laws, c. 53, § 5; 69 Del. Laws, c. 423, §§ 9, 10; 69 Del. Laws, c. 425, § 5; 70 Del. Laws, c. 186, § 1.;

(a) Whenever an appeal is 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 §§ 9547 and 9548 of this title, respecting other sureties of record.

(b) If it appears 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 the appellee's 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. The prothonotary shall enter in the judgment docket the name of the party and 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 the Superior Court are liens, and may be executed and enforced in the same way as judgments of the Court.

(c) Any joint debtor or surety shall be entitled to the remedies provided by subchapter II of Chapter 77 of Title 18.

Code 1852, § 2145; 11 Del. Laws, c. 225, § 2; Code 1915, § 4037; 34 Del. Laws, c. 223, § 3; Code 1935, § 4524; 10 Del. C. 1953, § 9581; 68 Del. Laws, c. 53, § 5; 70 Del. Laws, c. 186, § 1.;

(a) If an appellant does not duly enter the appellant's appeal in the Court of Common Pleas, 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 of the peace shall strike off the appeal.

(b) If after entering an appeal, the appellant neglects to prosecute it, or fails to comply with any rule, or makes other default, so that in a like case, in any other suit in Court, a nonsuit, 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.

Code 1852, § 2144; 11 Del. Laws, c. 225, § 2; Code 1915, § 4037; 34 Del. Laws, c. 223, § 3; Code 1935, § 4524; 10 Del. C. 1953, § 9582; 68 Del. Laws, c. 53, § 5; 69 Del. Laws, c. 423, § 11; 70 Del. Laws, c. 186, § 1.;

Transferred to § 9574 of this title.

(a) If a surety liable to execution dies before execution is issued, the creditor may proceed by scire facias upon such judgment and suretyship against the executors and administrators of such surety, and have judgment and execution as if the judgment had been a several judgment against such surety.

(b) A surety paying a judgment, or the surety's executors, or administrators, shall in every case be entitled to an assignment thereof, and to all remedies thereon, so far as to reimburse the surety, which the creditor could use against the principal, or any joint surety, or their executors or administrators.

Code 1852, § 2146; Code 1915, § 4038; Code 1935, § 4525; 10 Del. C. 1953, § 9583; 70 Del. Laws, c. 186, § 1.;

The form of a scire facias shall be as follows:

"...... County, ss. The State of Delaware,

To any constable, greeting:

We command you that you make known to A. B., administrator (or executor) of C. D., deceased, to appear before E. F., one of our justices of the peace, at said justice's office in............., on........... the........... day of............ at............. o'clock in the............. to show, if there be any cause, why execution should not be had against the said A. B., administrator (or executor) as aforesaid, of a judgment recovered by...... against the said C. D., deceased, before one of our justices of the peace, on the............. day of............., 20........, for the sum of............., with costs; and have you then there this warrant.

*   *   * *

*                  * Witness the hand and seal of the first named justice,

*    L. S. * the ____________ day of ____________ A.D. 20_____''

*                  *

*   *   * *

AGAINST BAIL

AGAINST BAIL

"...... County, ss. The State of Delaware,

To any constable, greeting:

We command you that you make known to A. B., bail of C. D., to appear before E. F., one of our justices of the peace, at said justice's office in............. on............. the............. day of............., at........... o'clock in the.............., to show if there be any cause, why execution should not be had against C.D. as such bail, of a judgment recovered by G. H., against the aforesaid C. D., before............., one of our justices of the peace, on the............. day of.............., 20........, for the sum of............. with costs.

*   *   * *

*                * Witness the hand and seal of the first named justice,

*    L. S. * the............. day of A.D. 20......''   

*                *

*   *   * *

AGAINST THE REPRESENTATIVES OF BAIL

AGAINST THE REPRESENTATIVES OF BAIL

"...... County, ss. The State of Delaware,

To any constable, greeting:

We command you that you make known to A. B., administrator (or executor) of C. D., deceased, who was bail for............., to appear before............., one of our justices of the peace, at said justice's office in.............., on............... the............. day of............. at........... o'clock in the............., to show if there be any cause why execution should not be had against the said A. B., administrator (or executor) as aforesaid of the said C. D., who was bail as aforesaid, of a judgment recovered by............., against the aforesaid............. before............. one of our justices of the peace, on the...... day of...... 20. ., for the sum of......, with costs, and have you then there this warrant.

*   *   * *

*                * Witness the hand and seal of the first named justice,

*    L. S. * the............. day of A.D. 20......''   

*                *

*   *   * *

AGAINST THE REPRESENTATIVES OF A SURETY

AGAINST THE REPRESENTATIVES OF A SURETY

Observe the form for use against the representatives of bail in all respects, except that where the word "bail'' occurs, use the word "surety.''

Code 1852, §§ 2147-2150; Code 1915, § 4039; Code 1935, § 4526; 10 Del. C. 1953, § 9584; 55 Del. Laws, c. 20, § 19; 70 Del. Laws, c. 186, § 1.;

(a) The death of a party shall not abate any action pending before a justice, or any appeal, or right of appeal, or any certiorari. If there are several plaintiffs, or defendants, and one dies, the action, or proceeding, may be prosecuted for, or against the survivor; and if the sole, or only remaining plaintiff, or defendant, dies, the executor, or administrator, of the deceased party, may become, or be made, a party to prosecute or defend.

(b) To make an executor, or administrator, of a defendant a party before the justice, a plaintiff must issue a summons in the usual form, adding after the words "is demanded," the words "for which cause of action suit was commenced against the said............., deceased, in his or her lifetime, and was pending at his or her death; to which the said............. executor (or administrator) is required to become a party."

(c) The summons shall be returnable as other original summons; and on service made, the executor, or administrator, shall be made a party, and the same proceedings had as in other cases.

Code 1852, §§ 2151, 2152; Code 1915, § 4040; Code 1935, § 4527; 10 Del. C. 1953, § 9585; 70 Del. Laws, c. 186, § 1.;

A scire facias may be issued by the justice rendering a judgment, or by any other justice, who has the record of such judgment, or a transcript thereof before such justice. It shall be issued, served and returned in the same way as an original summons, and similar proceedings may be had to judgment, execution and appeal, as in other cases; but there shall be no stay of execution on a judgment on scire facias, nor shall any proceedings against bail be affected hereby.

Code 1852, § 2153; Code 1915, § 4041; Code 1935, § 4528; 10 Del. C. 1953, § 9586; 55 Del. Laws, c. 20, § 20; 70 Del. Laws, c. 186, § 1.;

(a) The justice of the peace shall endorse on the scire facias the name of the party who has it issued, and his or her representative character, if he or she so sues, and the name of the person he or she represents, whether as executor, administrator, or assignee.

(b) The justice shall also enter in his or her docket the names of the parties, and their representative character, if either party sues or is sued as such, or as bail; the judgment, by whom rendered, when, and for how much; the names of the original parties; and a minute of the proceedings as in other cases.

(c) No assignment of a judgment shall authorize the assignee to proceed therein in his or her own name, except in the case of sureties or joint debtors, as provided in this subchapter.

Code 1852, § 2153; Code 1915, § 4041; Code 1935, § 4528; 10 Del. C. 1953, § 9587; 70 Del. Laws, c. 186, § 1.;

(a) No execution shall be issued on a judgment after the defendant's death; nor, except in the regular continuance of such process, after the lapse of 5 years from the time execution might first have issued; until the judgment is revived by scire facias. The writ of scire facias may be according to the form prescribed in this subchapter, with necessary variations. A judgment may be revived against the original defendant without service of the scire facias, as is provided in respect to bail, when no service can be made.

(b) No scire facias is necessary to make the representative, or assignee, of the plaintiff a party to such judgment; but the death, or assignment, being suggested on the record, the representative, or assignee, also named, shall become a party.

Code 1852, §§ 2154, 2155; Code 1915, § 4042; Code 1935, § 4529; 10 Del. C. 1953, § 9588; 75 Del. Laws, c. 282, § 1.;

In lieu of proceeding by summons in any civil action for debt brought before a justice of the peace, the proceeding may be by attachment, as provided by §§ 9583 and 9584 of this title and in the manner provided in such sections.

Code 1852, § 2156; Code 1915, § 4043; 34 Del. Laws, c. 221, § 6; Code 1935, § 4530; 10 Del. C. 1953, § 9589.;

On an affidavit made and filed by the plaintiff, or any credible person for the plaintiff, that the defendant is justly indebted to the plaintiff in a stated sum not exceeding $15,000 and has absconded, or is as that person believes, about to remove the defendant's person, or the defendant's effects out of the State, with intent to defraud the defendant's creditors, or intentionally conceals the defendant's person, so that process of summons cannot be served on the defendant, or is a nonresident of the State, as the case may be, the justice shall issue a writ of attachment; provided, however, that no such writ of attachment shall issue unless the affidavit provides specific facts demonstrating the validity of the debt and for believing that the debtor has absconded or is about to remove the defendant's person or the defendant's effects out of the State, with intent to defraud the defendant's creditors, or intentionally concealed the defendant's person so that process of summons cannot be served on the defendant, or is a nonresident of the State; provided further, that the plaintiff provide, at the time of filing, a cash bond in the amount of $100 conditioned that if the suit shall not be prosecuted with effect, or if the judgment rendered therein shall be in favor of a defendant, the plaintiff will pay any and all costs which may be awarded to a defendant, together with any and all damages, not exceeding the amount of the bond, which a defendant in the suit may have sustained by reason of such attachment, the remainder, if any, to be returned to the plaintiff when judgment is rendered.

Code 1852, § 2156; 18 Del. Laws, c. 678, § 1; Code 1915, § 4043; 34 Del. Laws, c. 221, § 6; Code 1935, § 4530; 10 Del. C. 1953, § 9590; 55 Del. Laws, c. 297, § 8; 57 Del. Laws, c. 192, § 8; 65 Del. Laws, c. 30, § 3; 66 Del. Laws, c. 393, § 1; 67 Del. Laws, c. 426, § 6; 69 Del. Laws, c. 425, § 6; 70 Del. Laws, c. 186, § 1.;

(a) The form of a writ of attachment shall be as follows:

"............ County, ss. The State of Delaware,

To any constable, greetings:

We command you to attach the goods and chattels, rights and credits of..........., the debtor, in order to make good to..........., the plaintiff, a cause of action wherein the sum of $...... is demanded, and that you serve any garnishee of the said debtor found in your bailiwick with 2 copies of this writ, 2 copies of the Affidavit for Attachment filed by the plaintiff and a Garnishee Notice of Service form; and you have then there this warrant, with your doings hereon duly certified.

TO GARNISHEE: You are hereby ordered under penalty of contempt to hand deliver forthwith to............, the debtor, a copy of this writ and a copy of the Affidavit for Attachment; and to return a completed copy of the Garnishee Notice of Service form to the Court as soon as service upon the said debtor is effectuated; and to withhold 15% of the said debtor's net earnings from the debtor's next regularly scheduled paycheck only and to hold same until released by order of the Court.

TO DEBTOR: 15% of your net wages from your next scheduled paycheck have been attached for the reasons set forth in the Affidavit for Attachment. The withholding of your wages shall be released by the Court if you: (1) Appear at the Court at any time, Monday through Friday, from 8 a.m. to 4 p.m. before final judgment and enter your appearance acknowledging that you will answer the plaintiff's demand and satisfy any judgment rendered against you in such suit; or (2) appear at the Court at any time, Monday through Friday, from 8 a.m. to 4 p.m., and contest the attachment, in which event the Court will conduct an immediate ex parte post-deprivation hearing on the seizure of your wages and shall dissolve the attachment if the Court determines that there no longer exists a factual basis demonstrating the need for the writ; or (3) appear for trial which is scheduled for the..... day of..........., 20......, at........... a.m./p.m. at Court No........, located at........... You are further advised that failure to appear for trial will result in a default judgment being entered against you.

Witness my hand and seal this..... day of..........., 20.....

.....................

Justice of the Peace"

(b) The form of the Garnishee's Notice of Service shall be as follows:

"Garnishee's Notice of Service

To:  Clerk of the Court, Justice of the Peace

Court No..........

Please be advised that I..........., garnishee in Civil Action No......., wherein........... is plaintiff and........... is the debtor, do hereby certify that a copy of the Writ of Attachment and a copy of the Affidavit for Attachment were served upon the debtor at........... a.m./p.m. on the.............. day of.........., 20....... I further certify that 15% of the debtor's next scheduled paycheck will be attached and held by the garnishee until released by the Court.

....

For Garnishee''

Complete below only if applicable

Please be advised that I..........., garnishee in Civil Action No......., wherein........... is the plaintiff and........... is the debtor, do hereby certify this..... day of..........., 20......, that the said debtor is not an employee of the garnishee and that, therefore, garnishee requests that the garnishee be released from obligations under the Writ of Attachment and is willing to appear to deny that there is anything of the debtor's in my hands or possession if summoned by the Court for this or other purpose.

....

For Garnishee''

Code 1852, § 2157; Code 1915, § 4043; 34 Del. Laws, c. 221, § 6; Code 1935, § 4530; 10 Del. C. 1953, § 9591; 55 Del. Laws, c. 20, § 21; 66 Del. Laws, c. 393, § 2; 70 Del. Laws, c. 186, § 1.;

(a) If any goods, or chattels, are taken on any attachment issued under this subchapter, the constable shall make an inventory, and cause them to be appraised by 2 judicious persons, under oath, or affirmation, and annex the inventory to the attachment.

(b) The constable shall be responsible for the safe keeping of the goods to be levied on in execution of the plaintiff's judgment when obtained. If the goods are of a perishable nature, they may be sold on the justice's order, and on due notice. The proceeds shall be held by the constable to be so applied, or restored, as is right. The constable's official bond shall embrace both these duties.

(c) When either goods are attached, or garnishee summoned, public notice to the following effect shall be given for 1 month by advertisements posted in the justice's office, at the courthouse door of the justice's county, and in 3 public places of the defendant's hundred, or, if within 2 years the defendant had no residence in the county, then in the justice's hundred. On proof of such notice, and of the plaintiff's demand before the justice, if under $5.00, and before referees, if above that sum, judgment may be rendered. The notices shall be prepared by the justice and shall state the parties, the sum demanded, the time and cause of issuing the attachment, as stated in the affidavit, and the return.

(d) Any other creditor of the defendant may, on application, be permitted to defend such claims in the defendant's name, or to open and controvert the judgment, or appeal from the same as in other cases.

(e) Nothing in this section shall apply to execution attachments.

Code 1852, §§ 2158-2162; Code 1915, § 4044; Code 1935, § 4531; 10 Del. C. 1953, § 9592; 70 Del. Laws, c. 186, § 1.;

(a) The service of an attachment on a garnishee may be made in the same way as service of an original summons.

(b) If a garnishee summoned on either original, or execution attachment, neglects to appear, as required, the justice may compel the garnishee's appearance by process, and may commit the garnishee if he or she refuses to answer or plead as required.

(c) The day for the garnishee's answer, or plea, may be adjourned by the justice, if necessary.

(d) If the justice has not received from the garnishee a copy of the Garnishee's Notice of Service form within 10 days after receipt thereof by the garnishee, the justice shall issue process to compel the appearance of the said garnishee.

Code 1852, §§ 2163, 2165; Code 1915, § 4045; Code 1935, § 4532; 10 Del. C. 1953, § 9593; 66 Del. Laws, c. 393, § 3; 70 Del. Laws, c. 186, § 1.;

The form of process to be used for compelling the appearance of a garnishee shall be as follows:

"....... County, ss. The State of Delaware,

To any constable, greeting:

We command you to bring A. B. forthwith before C. D., one of our justices of the peace, at said justice's office in............. to answer to E. F. as garnishee of G. H., and have you there this warrant.

*   *   * *

*                  *                          Witness the hand and seal of the said justice, the

*    L. S. * ____________ day of ____________ A.D. 20_____''

*                  *

*   *   * *

Code 1852, § 2164; Code 1915, § 4045; Code 1935, § 4532; 10 Del. C. 1953, § 9594; 55 Del. Laws, c. 20, § 22; 70 Del. Laws, c. 186, § 1.;

(a) The plaintiff, in his or her election, may require a garnishee to answer on oath, or affirmation, or to plead. The plaintiff shall make the election at or before the appearance, or the answer is taken, and the justice may compel the answer, or plea, by attachment of contempt.

(b) If the garnishee admits in his or her answer, or plea, that at the service of the attachment, or at any time since, there was in his or her hands, or possession, any attachable goods, or chattels, rights, credits, money, or effects of the defendant, judgment shall be given against the garnishee accordingly. The garnishee may, at the time the attachment is served, or returned, or on such other day as is fixed by the justice, deliver specific goods, so in his or her hands, to the constable, who shall make an inventory, and cause them to be appraised by 2 judicious persons under oath, or affirmation, and shall annex such inventory, to the attachment.

(c) A garnishee swearing, or affirming, falsely, is guilty of perjury and may be punished accordingly.

(d) If a garnishee pleads, he or she may deny that there is anything of the defendant's in his or her hands, or possession, or he or she may admit any thing or sum, and deny any thing more. The plea shall be entered and the trial shall proceed to judgment, execution, new trial, or appeal, in all respects as an original action commenced by summons. In order to determine the plaintiff's right to appeal, he or she may have entered on the record the amount of his or her demand against the garnishee. But if, on trial, there is not found against the garnishee more than is admitted by the garnishee's plea, the garnishee shall recover his or her costs against the plaintiff.

(e) There shall be a stay of execution on judgments against garnishees, as in other cases. If by the answer, plea, or trial, it appears that the garnishee owes a sum payable at a future day, there shall be a stay of execution until that time without security.

(f) In no case shall judgment be rendered against a garnishee, until judgment is given against the original debtor, nor for a greater sum; and a garnishee shall, upon request, be admitted to defend the suit against such debtor.

(g) If more is due from a garnishee than is embraced in the judgment against him or her, the garnishee may be required to answer in other cases. If there are several garnishees, the plaintiff may elect against which he or she will take judgment, and the others shall be discharged, but may be required to answer in other cases.

Code 1852, §§ 2166-2171; Code 1915, § 4047; Code 1935, § 4534; 10 Del. C. 1953, § 9596; 70 Del. Laws, c. 186, § 1.;

(a) If the original debtor appears at the Court at any time, Monday through Friday, from 8 a.m. to 4 p.m., before final judgment and enters an appearance acknowledging that debtor will answer the plaintiff's demand and satisfy any judgment rendered against debtor in such suit, the attachment shall be dissolved, and the cause proceed as in other cases.

(b) If the original debtor appears at the Court at any time, Monday through Friday, from 8 a.m. to 4 p.m., before final judgment and contests the attachment, the justice shall immediately conduct an ex parte post-deprivation hearing on the seizure of the debtor's wages if the justice then determines that there no longer exists a factual basis demonstrating the need for the writ, the attachment shall be dissolved, and the cause proceed as in other cases.

(c) If the original debtor appears for trial, the attachment shall be dissolved, and the cause proceed as in other cases.

(d) In cases not falling within subsection (a), (b) or (c) of this section, the attachment shall, in any event, be dissolved, and the cause proceed as in other cases, 30 days from the date on which the writ of attachment issued.

Code 1852, §§ 2172, 2173; Code 1915, § 4048; Code 1935, § 4535; 10 Del. C. 1953, § 9597; 66 Del. Laws, c. 393, § 4; 70 Del. Laws, c. 186, § 1.;

(a) A garnishee summoned on any attachment shall be allowed, as against any claim by the defendant, for any property delivered by the garnishee to the constable, or for the amount of any judgment rendered against the garnishee, exclusive of costs, in the same way as if the garnishee, at the time the attachment was laid, had delivered the property, or paid the money to the defendant in the attachment.

(b) The constable, to whom any goods or effects are, upon any attachment, delivered, and the constable's sureties, shall be liable, on his or her official bond, for the safe keeping of such goods or effects. The constable shall make certain that the goods or effects are taken in execution upon judgment being rendered against the defendant, or are restored to the owner, if no such judgment is rendered. The constable shall account for all money arising from the sale of any such goods or effects, and shall pay the same to the persons entitled.

Code 1852, §§ 2174, 2175; Code 1915, § 4049; Code 1935, § 4536; 10 Del. C. 1953, § 9598; 70 Del. Laws, c. 186, § 1.;