Mayor of Wilmington v. Kearns

Superior Court of Delaware

Mayor of Wilmington v. Kearns

1 Del. 362

DecidedJuly 1, 1857

StatusPublished

This text of 1 Del. 362 (Mayor of Wilmington v. Kearns) 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

Mayor of Wilmington v. Kearns, 1 Del. 362 (Del. Ct. App. 1857).

Pincite

Opinion

The Court,

however, was of opinion, that the provisions of the statute in regard to affidavits of defence had relation only to cases in which the return of the sheriff to the summons was in conformity with the provisions of the act in regard to the service of the writ, which required the officer [363]*363to state whether it was served personally on the defendants or by a copy left at their usual place of abode, in the presence of some white adult person, six days before the return thereof. Rev. Code, 368. And without such a return, no judgment by default for want of an appearance of the defendants could properly be entered.

Judgment and inquisition set aside.

The counsel for the plaintiff then asked for leave to the sheriff to amend his return, which the Court granted, on condition that the defendants should be allowed to enter their appearance on the amended return at this term, and on payment of costs.

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The Court,

however, was of opinion, that the provisions of the statute in regard to affidavits of defence had relation only to cases in which the return of the sheriff to the summons was in conformity with the provisions of the act in regard to the service of the writ, which required the officer [363]*363to state whether it was served personally on the defendants or by a copy left at their usual place of abode, in the presence of some white adult person, six days before the return thereof. Rev. Code, 368. And without such a return, no judgment by default for want of an appearance of the defendants could properly be entered.

Judgment and inquisition set aside.

The counsel for the plaintiff then asked for leave to the sheriff to amend his return, which the Court granted, on condition that the defendants should be allowed to enter their appearance on the amended return at this term, and on payment of costs.

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Bluebook (online)

1 Del. 362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayor-of-wilmington-v-kearns-delsuperct-1857.