Doe v. Roe

51 A. 601, 19 Del. 501, 3 Penne. 501, 1902 Del. LEXIS 7

• Court: Superior Court of Delaware
• Decided: February 15, 1902
• Docket: Action of Ejectment No. 33
• Status: Published

Opinion

Lore, C. J.:

The return of the Sheriff shows personal service on the defendants on the 25th day of June, 1901. On the first day of October, 1901, judgment for want of an appearance was rendered by the plaintiff as of the September Term, 1901.

This return of the Sheriff imports verity, and is conclusive between the parties as to such service.

• Stidham vs. Thatcher, 2 Pewnewill, 567; Bennethum vs. Bowers, 133 Pa. St., 332.

Such service can only be attacked in proceedings of this nature, under Revised Code, 775, Chapter 102, Section 3.

This statute provides, in case of judgment for default of appearance : “ If the defendant shall, at or before the next term after such judgment, by affidavit deny notice or knowledge of such suit, before judgment was rendered, and shall allege that there is a just and legal defense to the action or some part thereof, such judgment shall be taken off and he shall be permitted to appear.”

By Rule 9, Section 17, “ Such application must be made on or before the last day of the term next after such judgment.”

This application was not made at the November Term, 1901, the next term after the judgment, but at the February Term, 1902, the second term thereafter, and is therefore too late.

Rule discharged.