Jackson v. Hedges

4 Del. 96

• Court: Superior Court of Delaware
• Decided: July 5, 1843
• Status: Published

Opinions

By the Court.

—The judgment rendered by Justice MvCaulley, was a judgment against George F. Jackson alone. He could render no other judgment; for though the summons embraced another defendant he was not taken, could not have been declared against, and any judgment against him, even in connection with Jackson, would have been erroneous. He appealed from that judgment, and brought the case into this court. How was the plaintiff to declare here 1 If he had declared against Dickenson, as well as Jackson, it would have been error; for Dickenson is no party to the judgment below, or in the proceedings here. It would have been fatal even on demurrer, or in arrest of judgment; for the record would have shown proceedings and verdict against a party who was never in court. Again, if the plaintiff could have declared against Dickenson here, and obtained a judgment against him, it would have been an original judgment as against him; and not a judgment on appeal. There was no course but to declare against the party who was in court by the appeal; against whom judgment had been rendered in the court below, and that party is Jackson.

It is stated in the case cited from 1 Binney’s Reports, that the transcript which accompanies the appeal, is in place of a writ; and the foundation of all the proceedings in this court: and our act of assembly directs that the proceedings here upon such appeal, shall be proceeded in by declaration, pleadings and trial, in the same way as in cases originally commenced in this court. Now if the transcript stands for the writ, and shows but one defendant taken, the declara, ration must be, as it would be in any other case showing the same state of facts namely, against the party taken, who is in fact the party against whom judgment below was rendered. If then the appeal must follow the judgment, or the pleading here must be conducted as if the case was originally commenced here, George F. Jackson was the only defendant, either in this court or the court below, against whom a declaration could have been filed, or a judgment obtained.