McMullin v. Beck

Superior Court of Delaware

McMullin v. Beck

80 A. 524, 26 Del. 116, 3 Boyce 116, 1911 Del. LEXIS 21

CourtSuperior Court of Delaware

DecidedJune 2, 1911

DocketAppeal No. 64

StatusPublished

This text of 80 A. 524 (McMullin v. Beck) 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

McMullin v. Beck, 80 A. 524, 26 Del. 116, 3 Boyce 116, 1911 Del. LEXIS 21 (Del. Ct. App. 1911).

Pincite

Opinion

Boyce, J.,

delivering the opinion of the court:

We recognize that in this court the use of the praecipe prevails. The office and effect of the praecipe in this court is not before us, and we express no opinion in relation thereto.

[118]*118The question now before us is whether a praecipe filed before a justice of the peace commanding that a summons or attachment issue is the commencement of an action such as will arrest the operation of the act of limitations.

The justice’s court is a court of special and limited jurisdiction. It is without terms or rules and we know of no practice prevailing in a justice’s court for the use of the praecipe in bringing an action.

The statute giving jurisdiction to justices of the peace in civil actions provides for two kinds of process; one is by summons and the other by attachment. Whether a person desiring to bring an action before a justice shall demand a summons or attachment orally or in writing, we think the action is not begun until the process is actually issued by the justice. It is not the order for the summons or attachment, but the issuance thereof, in a justice’s court, that operates in arresting the act of limitations. In this case, the summons not having issued until the second day of June, 1910, more than three years from the time the cause of action accrued, to wit, twenty-fourth day of May, 1910, the act of limitations had run before the action was brought. And the act of limitations having been pleaded, the plaintiff is not entitled to recover in this action, and the request of the defendant for binding instructions in favor of the defendant should be granted.

Gentlemen of the jury, you are directed to return a verdict for the defendant.

Verdict for defendant.

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Boyce, J.,

delivering the opinion of the court:

We recognize that in this court the use of the praecipe prevails. The office and effect of the praecipe in this court is not before us, and we express no opinion in relation thereto.

[118]*118The question now before us is whether a praecipe filed before a justice of the peace commanding that a summons or attachment issue is the commencement of an action such as will arrest the operation of the act of limitations.

The justice’s court is a court of special and limited jurisdiction. It is without terms or rules and we know of no practice prevailing in a justice’s court for the use of the praecipe in bringing an action.

The statute giving jurisdiction to justices of the peace in civil actions provides for two kinds of process; one is by summons and the other by attachment. Whether a person desiring to bring an action before a justice shall demand a summons or attachment orally or in writing, we think the action is not begun until the process is actually issued by the justice. It is not the order for the summons or attachment, but the issuance thereof, in a justice’s court, that operates in arresting the act of limitations. In this case, the summons not having issued until the second day of June, 1910, more than three years from the time the cause of action accrued, to wit, twenty-fourth day of May, 1910, the act of limitations had run before the action was brought. And the act of limitations having been pleaded, the plaintiff is not entitled to recover in this action, and the request of the defendant for binding instructions in favor of the defendant should be granted.

Gentlemen of the jury, you are directed to return a verdict for the defendant.

Verdict for defendant.

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Bluebook (online)

80 A. 524, 26 Del. 116, 3 Boyce 116, 1911 Del. LEXIS 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmullin-v-beck-delsuperct-1911.