Jersawit v. Banning

Superior Court of Delaware

Jersawit v. Banning

118 A. 727, 32 Del. 47, 2 W.W. Harr. 47, 1922 Del. LEXIS 32

CourtSuperior Court of Delaware

DecidedOctober 20, 1922

DocketNo. 19

StatusPublished

Cited by2 cases

This text of 118 A. 727 (Jersawit v. Banning) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jersawit v. Banning, 118 A. 727, 32 Del. 47, 2 W.W. Harr. 47, 1922 Del. LEXIS 32 (Del. Ct. App. 1922).

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Opinion

Harrington, J.,

delivering the opinion of the Court:

The affidavit of demand filed in this case was made by Lewis Jersawit, who is described in it as Receiver in Equity for Reminton Phonograph Corporation (a corporation of the State of Delaware).

The defendant contends that it is defective because it does not expressly state that Jersawit is the Receiver for such corporation. The statute providing for judgment at the first term, under which this affidavit is filed (Section 4169, Revised Code 1915) requires the “plaintiff,” when the suit is on a book account, to file a copy of said account in the office of the Prothonotary “with an affidavit stating the sum demanded,” etc.

The sole question, therefore, is whether Lewis Jersawit, Receiver, is the plaintiff. From the affidavit filed and its caption, it clearly appears that Lewis Jersawit, Receiver, is the plaintiff. Newlin v. Adair, 3 Boyce 441, 84 Atl. 1028. The Remington Phonograph Corporation, for whom Jersawit is Receiver, is not only not the plaintiff, but Jersawit is not even an agent or officer [49]*49of the corporation. When a receiver is appointed for a corporation, he is an officer of the Court appointing him, and his appointment is for the benefit of all parties who may ultimately establish rights in the case. Stockbridge v. Beckwith et al., 6 Del. Ch. 72, 33 Atl. 620; In re Frederica W. L. & P. Co., 10 Del. Ch. 362, 93 Atl. 376; Du Pont v. Standard Arms Co., 9 Del. Ch. 324, 82 Atl. 692. The corporation cases cited by the plaintiff, therefore, have no application to this case.

This Court, in construing this statute (Section 4169, Revised Code 1915), has already held that where an administratrix of a deceased person is a party plaintiff, it is not necessary to expressly allege in the affidavit of demand that she is the administratrix of such person. Newlin v. Adair, 3 Boyce 441, 84 Atl. 1028.

In the same case it also refused to extend the statute by requiring the affiant to expressly set forth that she was the plaintiff in the action.

Lewis Jersawit, Receiver, the plaintiff, made the affidavit in this case, and under the same reasoning, it is not necessary to expressly state in the affidavit that he is the Receiver.

The affidavit of demand is, therefore, sufficient and the motion of the defendant that judgment be refused notwithstanding such affidavit is refused.

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Harrington, J.,

delivering the opinion of the Court:

The affidavit of demand filed in this case was made by Lewis Jersawit, who is described in it as Receiver in Equity for Reminton Phonograph Corporation (a corporation of the State of Delaware).

The defendant contends that it is defective because it does not expressly state that Jersawit is the Receiver for such corporation. The statute providing for judgment at the first term, under which this affidavit is filed (Section 4169, Revised Code 1915) requires the “plaintiff,” when the suit is on a book account, to file a copy of said account in the office of the Prothonotary “with an affidavit stating the sum demanded,” etc.

The sole question, therefore, is whether Lewis Jersawit, Receiver, is the plaintiff. From the affidavit filed and its caption, it clearly appears that Lewis Jersawit, Receiver, is the plaintiff. Newlin v. Adair, 3 Boyce 441, 84 Atl. 1028. The Remington Phonograph Corporation, for whom Jersawit is Receiver, is not only not the plaintiff, but Jersawit is not even an agent or officer [49]*49of the corporation. When a receiver is appointed for a corporation, he is an officer of the Court appointing him, and his appointment is for the benefit of all parties who may ultimately establish rights in the case. Stockbridge v. Beckwith et al., 6 Del. Ch. 72, 33 Atl. 620; In re Frederica W. L. & P. Co., 10 Del. Ch. 362, 93 Atl. 376; Du Pont v. Standard Arms Co., 9 Del. Ch. 324, 82 Atl. 692. The corporation cases cited by the plaintiff, therefore, have no application to this case.

This Court, in construing this statute (Section 4169, Revised Code 1915), has already held that where an administratrix of a deceased person is a party plaintiff, it is not necessary to expressly allege in the affidavit of demand that she is the administratrix of such person. Newlin v. Adair, 3 Boyce 441, 84 Atl. 1028.

In the same case it also refused to extend the statute by requiring the affiant to expressly set forth that she was the plaintiff in the action.

Lewis Jersawit, Receiver, the plaintiff, made the affidavit in this case, and under the same reasoning, it is not necessary to expressly state in the affidavit that he is the Receiver.

The affidavit of demand is, therefore, sufficient and the motion of the defendant that judgment be refused notwithstanding such affidavit is refused.

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Bluebook (online)

118 A. 727, 32 Del. 47, 2 W.W. Harr. 47, 1922 Del. LEXIS 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jersawit-v-banning-delsuperct-1922.

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