Leviton v. Walsh

105 A. 838, 30 Del. 295, 7 Boyce 295, 1919 Del. LEXIS 31

• Court: Superior Court of Delaware
• Decided: March 25, 1919
• Docket: Appeal, No. 80
• Status: Published

Opinion

Boyce, J:

[1, 2] As was said in Morrison v. Montgomery, ante, 105 Atl. 425, on the return of the summons with the sheriff’s indorsement thereon of non est inventus, an alias summons should be issued before the next term. This was not done in this case. The issuance of the alias summons, after an intervening term, was too late. We think, however, that general appearance, having been entered for the respondent, it is in effect equivalent to service, and cures any defect arising by reason of the failure to issue the alias summons in proper time.

Let the alias summons be quashed.

Whereupon counsel for respondent moved to dismiss the appeal on the ground that it appears from the entry of surety, required by the statute (Rev. Code 1915, § 4035), as shown by the transcript of the justice filed in this case, appeal was taken by “the Star Wall Paper and Decorating Company.”

Counsel for the appellant contended that the motion comes too late (Townsend v. Stewart, 4 Har. 94; Lewis v. Hazel, 4 Har. 470; Peninsula Cut Stone Co. v. Nixon, 3 Boyce, 339, 83 Atl. 1081), and also that the appellant had a right to adopt and use his trade-name in taking the appeal.

[3] Under the statute, only a party, or his agent or attorney, is entitled to an appeal. The Star Wall Paper and Decorating Company was not the party plaintiff in the action before the justice of the peace, neither is it the appellant in this court. The entry of surety, on praying for an appeal, as required by the statute, is for the benefit of the appellee, and the appeal must be taken in conformity with the requirement of the statute.

The appeal is dismissed.