Georgetown Trust Co. v. Marvel

162 A. 359, 35 Del. 210, 5 W.W. Harr. 210, 1932 Del. LEXIS 20

• Court: Superior Court of Delaware
• Decided: July 27, 1932
• Docket: No. 44
• Status: Published

Opinion

Harrington, J.,

delivering the opinion of the Court:

Though a judgment nisi for want of appearance has already been entered against the defendant, that a judgment on an award of three judicious and impartial freeholders ascertaining the amount due on such judgment is proper, and will bind the real estate of a deceased person where an executor or administrator is the defendant in an action, is clear. Revised Code 1915, §§ 3400, 3401, 4316, 4319; Woolley’s Del. Pr., § 706.

Differing from the usual rule it is equally clear that the application for the appointment of referees may be made by the plaintiff alone, where the defendant has failed to appear. Revised Code 1915, §§ 4316, 4317; Woolley’s Del. Pr., § 702.

In the absence of some other direction in the order appointing them the report of referees is always returnable to the court on or before the first day of the term succeeding their appointment; and in the absence of exception filed thereto judgment on such report would be entered as a matter of course, at that term. Woolley’s Del. Pr., §§ 712, 717.

In conformity with its usual powers over its own proceedings the court, however, for sufficient cause shown may extend the return day to a later date. In fact, it has been said that in practice, when good reason is shown, the court will not only extend the return day to a later day during the usual return term but even to the first day of the succeeding term. Woolley’s Del. Pr., §§ 712, 717.

Exceptions to the reports of referees must always be filed during the term to which they are returned and before the confirmation of such reports. Woolley’s Del. Pr., § 717; Conoway v. Short, 3 Harr. 342.

While no rule to that effect appears in the Superior Court Rules, long established practice requires that exceptions shall ordinarily be filed on the first Thursday of the return term, but, for cause shown, this time may be extended by the Court. Woolley’s Del. Pr., § 717.

In most cases of this character, the amount due is ascertained by inquisition, but under the statute (Revised Code 1915, § 4316) it may also be done by referring the case to three judicious and impartial freeholders; and, in a proper case, there would seem to be no good reason why they should not be directed to return their report to this court at some later date during the term, instead of to the succeeding term. In fact, this is sometimes done by agreement of counsel and a date is then fixed by the court for filing exceptions thereto. Woolley’s Del. Pr., § 712.

The motion of the plaintiff is, therefore, granted and the freeholders appointed will be directed to return their report to this court on or before Wednesday, July 27, 1932, and on that day the time for filing exceptions to such report will be fixed by the Court.