§ 9631. | § 9632. | § 9633. | § 9634. | § 9635. | § 9636. | § 9637. | § 9638. | § 9639. | § 9640.
The proceeding before justices of the peace in actions of replevin and detinue shall be by writ as provided in this subchapter. (Code 1915, § 4065B; 29 Del. Laws, c. 256, § 2; Code 1935, § 4548; 10 Del. C. 1953, § 9631.)
In replevin actions, the plaintiff shall file a written statement setting forth all the necessary averments which the plaintiff claims to constitute the right of action. Such statement of claim shall be filed before the summons is issued. (10 Del. C. 1953, § 9632; 59 Del. Laws, c. 74, § 1.)
(a) In a proceeding under this subchapter, the service of a summons shall be as in all other civil actions. If service is unable to be perfected, the Court may forward a certified letter, return receipt requested, to the defendant enclosing the statement of claim and informing the defendant that a hearing will be held 15 days from the date of the certified letter based upon the claim outlined in the statement of claim.
(b) The summons and the certified letter shall both contain a provision instructing the defendant not to intentionally destroy, damage, sell or secrete the item in question with the further proviso that the violation thereof could result in a civil contempt violation in accordance with § 9506 of this title.
(c) The trial of the issue shall be as in all other civil actions.
(d) Should judgment be entered in favor of the plaintiff, the Court shall issue a writ of replevin in the form outlined in § 9634 of this title.
(e) Upon the execution of the writ of replevin, there shall be a stay of 15 days from the date of the judgment during which the plaintiff shall not sell, damage, destroy or secrete the items. A violation of this section could result in a civil contempt violation in accordance with § 9506 of this title. The purpose of the stay is to permit the defendant to appeal or otherwise act.
(f) Any statute inconsistent with the contents of this section is repealed. (10 Del. C. 1953, § 9633; 59 Del. Laws, c. 74, § 1.)
The writ shall be of the following form:
"....... . County, ss. The State of Delaware.
To any constable of.. . County.
WE COMMAND YOU to replevy and deliver to the said........................ . the following described goods and chattels forthwith to wit:......... . of the value of........... . dollars.............. . lawful money of the United States of America, the goods and chattels of the said........................., and
WE FURTHER COMMAND YOU that you act forthwith and make a return forthwith. WITNESS the hand and seal of the said justice, this......................... day of....... ., A. D., 19..... ." (10 Del. C. 1953, § 9634; 59 Del. Laws, c. 74, § 1.)
(a) In a proceeding under this subchapter, if the value of the property in controversy exceeds $5, either party may claim a trial by referee and thereupon the justice shall appoint 3 judicious and impartial people of the county to try the cause.
(b) The referees shall be sworn or affirmed that they will "faithfully and impartially try the cause pending between the said........... . plaintiff and........... . defendant and make a true and just report thereupon according to the evidence" and shall hear the allegations of the parties and their proofs. If either party fails to appear before the referees, they may proceed in such party's absence and when the referees or any 2 of them agree, they shall make a report under their hands and return the same to the justice who shall give judgment according to the report.
(c) If any referee appointed fails to appear or serve throughout the trial the justice may supply such referee's place by appointing and qualifying another; but there shall be no trial by referees if the defendant has not appeared.
(d) In all other cases the justice shall hear the case and give judgment according to the right of the matter and the law of the land. (Code 1915, § 4065F; 29 Del. Laws, c. 256, § 2; Code 1935, § 4552; 10 Del. C. 1953, § 9636; 70 Del. Laws, c. 186, § 1.)
§ 9636. Compelling attendance of referees.
(a) In a proceeding under this subchapter, the justice may require the attendance of the referees he or she appoints and may issue a summons under hand and seal to a constable for summoning them to appear before him or her.
(b) If any referee duly summoned to appear as required, or to be qualified and serve throughout the trial such referee shall, unless he or she shows to the justice a sufficient excuse, be guilty of contempt, and shall be fined $5 which shall be levied with costs by distress and sale of the referee's goods and chattels by virtue of a warrant by the justice.
(c) The warrant shall be directed to a constable in the following manner:
"....... . County, ss. The State of Delaware.
To any constable, greeting:
Whereas,........... . of........... . has been adjudged by........... ., 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 $5 in pursuance of the Act of Assembly in such case provided and
Whereas, the said........... . has neglected to pay the said sum, we therefore command you to levy the said sum of $5 with........... . costs and your costs hereon by distress and sale of the goods and chattels of the said........... . upon due notice given as upon other execution process.
Witness the hand and seal of the said justice the..... . day of..... . A. D. 19..... ." (Code 1915, § 4065G; 29 Del. Laws, c. 256, § 2; Code 1935, § 4553; 10 Del. C. 1953, § 9637; 55 Del. Laws, c. 20, § 26; 70 Del. Laws, c. 186, § 1.)
(a) In a proceeding under this subchapter, if the defendant being duly summoned does not appear, or if upon trial it is proved to the satisfaction of the justice that the plaintiff is entitled to the possession of the property, replevied and delivered, plaintiff shall have judgment for the possession thereof and for the costs.
(b) If it appears that the plaintiff is entitled to the possession of a portion of the property, replevied and delivered, plaintiff shall have judgment for the possession of that portion of the property and the defendant shall have judgment for the value of the other portion of the property, and each party shall pay its own costs.
(c) If it appears that the plaintiff is entitled to the possession of all or a portion of the property and that the property replevied was left in the possession of the defendant by reason of a bond having been given, as provided for in this subchapter the plaintiff shall have judgment for the value of the property to which he or she is entitled to the possession, and for the costs; otherwise judgment shall be for the defendant for the value of the property replevied and for the costs.
(d) In all judgments execution may be had to levy the amount thereof. (Code 1915, § 4065E; 29 Del. Laws, c. 256, § 2; Code 1935, § 4551; 10 Del. C. 1953, § 9638; 70 Del. Laws, c. 186, § 1.)
§ 9638. Lien of judgment on real estate.
Any judgment entered under this subchapter may be made a lien on real estate in the same manner as is provided by § 9569 of this title. (Code 1915, § 4065J; 29 Del. Laws, c. 256, § 2; Code 1935, § 4556; 10 Del. C. 1953, § 9639.)
In proceedings under this subchapter, witnesses shall have the same fees as for attendance before justices of the peace in other actions. (Code 1915, § 4065H; 29 Del. Laws, c. 256, § 2; Code 1935, § 4554; 10 Del. C. 1953, § 9640; 55 Del. Laws, c. 20, § 27.)
Appeals shall be allowed from judgments given by justices of the peace under this subchapter, to the Court of Common Pleas. Such appeals shall be taken, docketed and dismissed in the same manner as is provided by law for the taking, docketing and dismissing of appeals from justices of the peace in civil cases for debt. (Code 1915, § 4065I; 29 Del. Laws, c. 256, § 2; Code 1935, § 4555; 10 Del. C. 1953, § 9641; 69 Del. Laws, c. 423, § 14.)
NOTICE: The Delaware Code appearing on this site was prepared by the Division of Research of Legislative Council of the General Assembly with the assistance of the Government Information Center, under the supervision of the Delaware Code Revisors and the editorial staff of LexisNexis, includes all acts up to and including 76 Del. Laws, c. 246, effective June 19, 2008.
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