Jester v. Lekite

5 Del. 19

• Court: Superior Court of Delaware
• Decided: April 5, 1848
• Status: Published

Opinion

The record showed a summons and judgment for plaintiff by default, for want of the defendant's appearance, for $20; the subsequent appearance of the defendant and application to have the judgment by default taken off, and a new trial granted, which the justice, without any notice to the plaintiff granted; and appointed another day for trial; at which time both the parties appeared and went into trial by freeholders, on the demand of the plaintiff, and there was a report and judgment of nonsuit.

Whereupon the plaintiff sued out this certiorari, and assigned for error the want of notice to the plaintiff of the application for a new trial.

Mr. Bates insisted that the opening of the judgment, without notice to the plaintiff, was error, not cured by subsequent appearance.

Mr. Layton insisted that the subsequent appearance cured all previous defects.

Mr. Bates replied, that the appearance at the second trial cured the want of notice of such trial, but did not cure the want of notice of hearing on the application to take off the judgment by default.

The Court considering that the appearance of both parties after the error of granting a new trial without notice, cured this and all prior defects of proceeding, affirmed the judgment. They considered that it fell within the principle of Lewis vs. Hazel, 4 Harr. Rep. 470.