Johnson v. Layton

Superior Court of Delaware

Johnson v. Layton

5 Del. 252

DecidedJuly 5, 1850

StatusPublished

This text of 5 Del. 252 (Johnson v. Layton) 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

Johnson v. Layton, 5 Del. 252 (Del. Ct. App. 1850).

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Opinion

By the Court.

Harrington, Judge.

The proceeding by attachment is to compel an appearance; or substituting a certain form of notice for a summons, to dispense with the appearance and procure judgment without it. It is, therefore, necessary that the record should show that this substitute for that which in other actions is essential to the validity of any judgment, was secured; and the provisions of the act complied with. It is, that five notices of a prescribed form were posted in certain places; and “ on proof of such notice being made” the authority is given to render judgment. The notices may be posted by the constable or by- the plaintiff; but in the latter case proof thereof must be made by a credible witness, and in the former by the constable himself. It is matter of evidence, to be judged *254 of by the justice ; and if the record show that such proof was made, either by the statement of that fact by the justice in making up his record, or by the return of the constable, verified by oath, we should consider it sufficient. But if the justice do not state that such proof was made; and we have to look back to the return of the constable, it will be insufficient, unless it shows in itself that the requirements of the law were complied with. If the justice says that proof of setting up notices was made according to law, it will be sufficient, for he is made the judge of that matter, and of the credibility of the witness by whom it is proved ; but if the constable return only that notice was set up according to law, it will be insufficient, unless he state when and where set up; for he is not to judge of that matter. In this respect it is like his return of service to a summons; it would not be sufficient, though sworn to, for him to return served according to law, but he must state whether the service was personal, or by leaving a copy at the defendant’s place of abode.

Mr. Cullen, for plaintiff. Mr. Layton and Layton, jr., for defendant.

This record is, therefore, imperfect in this respect; and the judgment must be reversed.

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By the Court.

Harrington, Judge.

The proceeding by attachment is to compel an appearance; or substituting a certain form of notice for a summons, to dispense with the appearance and procure judgment without it. It is, therefore, necessary that the record should show that this substitute for that which in other actions is essential to the validity of any judgment, was secured; and the provisions of the act complied with. It is, that five notices of a prescribed form were posted in certain places; and “ on proof of such notice being made” the authority is given to render judgment. The notices may be posted by the constable or by- the plaintiff; but in the latter case proof thereof must be made by a credible witness, and in the former by the constable himself. It is matter of evidence, to be judged *254 of by the justice ; and if the record show that such proof was made, either by the statement of that fact by the justice in making up his record, or by the return of the constable, verified by oath, we should consider it sufficient. But if the justice do not state that such proof was made; and we have to look back to the return of the constable, it will be insufficient, unless it shows in itself that the requirements of the law were complied with. If the justice says that proof of setting up notices was made according to law, it will be sufficient, for he is made the judge of that matter, and of the credibility of the witness by whom it is proved ; but if the constable return only that notice was set up according to law, it will be insufficient, unless he state when and where set up; for he is not to judge of that matter. In this respect it is like his return of service to a summons; it would not be sufficient, though sworn to, for him to return served according to law, but he must state whether the service was personal, or by leaving a copy at the defendant’s place of abode.

Mr. Cullen, for plaintiff. Mr. Layton and Layton, jr., for defendant.

This record is, therefore, imperfect in this respect; and the judgment must be reversed.

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Bluebook (online)

5 Del. 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-layton-delsuperct-1850.