In re Vandenburg

112 A. 830, 31 Del. 192, 1 W.W. Harr. 192, 1921 Del. LEXIS 9

• Court: Superior Court of Delaware
• Decided: February 22, 1921
• Docket: Rule No. 1
• Status: Published

Opinion

Boyce, J.

The sole question presented is whether the judgment note given by the Vandenburgs to Todd, and on which judgment by confession was entered, had been fully paid before the entry of the judgment. The court is disinclined to hear and determine the disputed question of fact, but will direct an issue to be tried by a jury to ascertain and determine what amount, if any, is due and unpaid on said judgment.

An issue was framed accordingly and tried before a jury on a day in the term agreed upon by counsel. Proofs were made of the payments on the note on which the judgment was entered as alleged in the petition. The payments, in fact, were admitted by the respondent, plaintiff in the judgment, but he claimed that they were made on another note, given by the Vandenburgs to him on the same day and for the same amount as the note on which he had caused the judgment to be entered, and that neither the note nor the judgment entered thereon had been paid. In rebuttal, it was denied that the payments were either made on or to be applied to another note. Mrs. Vandenburg denied that she ever joined her husband in any other note to Todd, except the note in question, and on which the judgment was entered.

After arguments of counsel and instructions by the court, the jury found there was nothing due and payable on said judgment.

On the day following the verdict:

The rule in this case is made absolute, and upon the finding of the jury on the issue submitted to' them, the judgment mentioned in the proceeding is vacated and set aside, and the execution issued thereon is quashed. Costs on the respondent in the rule and plaintiff in the judgment.