McCaulley v. John v. Rice & Co.

Superior Court of Delaware

McCaulley v. John v. Rice & Co.

11 Del. 475

DecidedJuly 5, 1881

StatusPublished

This text of 11 Del. 475 (McCaulley v. John v. Rice & Co.) 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

McCaulley v. John v. Rice & Co., 11 Del. 475 (Del. Ct. App. 1881).

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Opinion

The Court

held that the suit was commenced when the summons in the case was issued under the seal of the court to the sheriff, and as that was regularly followed on its return non est at the first term to which it was returnable, by an alias summons to the next term which was served and to which the defendants appeared, it was the continuance of one and the same suit from the commencement of it, and according to established law and practice here the court had jurisdiction of the suit and the cause of action at least, as far as the plaintiff could give it, if not of the defendants until they appeared, in order that it might in this mode compel their appearance, or at least, obtain service of a summons upon them. And we therefore think that the suit must be considered under these circumstances to have commenced on the day the first summons was issued, and was consequently pending in the language and meaning of the statute when it was enacted, for we have no idea that the legislature or the people generally, or even the members of the legal profession in general employ that term ordinarily in any such technical or peculiar sense as has been contended for by the counsel for the defendants. On the contrary, in its ordinary and' common signification a suit once commenced is said to be pending until it is ended, or gets out of the court in some way or other. The witness, we therefore think, is incompetent in this case under the statute.

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The Court

held that the suit was commenced when the summons in the case was issued under the seal of the court to the sheriff, and as that was regularly followed on its return non est at the first term to which it was returnable, by an alias summons to the next term which was served and to which the defendants appeared, it was the continuance of one and the same suit from the commencement of it, and according to established law and practice here the court had jurisdiction of the suit and the cause of action at least, as far as the plaintiff could give it, if not of the defendants until they appeared, in order that it might in this mode compel their appearance, or at least, obtain service of a summons upon them. And we therefore think that the suit must be considered under these circumstances to have commenced on the day the first summons was issued, and was consequently pending in the language and meaning of the statute when it was enacted, for we have no idea that the legislature or the people generally, or even the members of the legal profession in general employ that term ordinarily in any such technical or peculiar sense as has been contended for by the counsel for the defendants. On the contrary, in its ordinary and' common signification a suit once commenced is said to be pending until it is ended, or gets out of the court in some way or other. The witness, we therefore think, is incompetent in this case under the statute.

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Bluebook (online)

11 Del. 475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccaulley-v-john-v-rice-co-delsuperct-1881.