Miller v. Wilmington Trust Co.

Superior Court of Delaware

Miller v. Wilmington Trust Co.

75 A. 789, 24 Del. 251, 1 Boyce 251, 1910 Del. LEXIS 29

DecidedMarch 16, 1910

StatusPublished

This text of 75 A. 789 (Miller v. Wilmington Trust 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

Miller v. Wilmington Trust Co., 75 A. 789, 24 Del. 251, 1 Boyce 251, 1910 Del. LEXIS 29 (Del. Ct. App. 1910).

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Opinion

Pennewill, C. J.,

delivering the opinion of the Court:

A motion has been made by the defendant in the above stated case that judgment be refused notwithstanding the affidavit of demand, on two grounds.

It is contended first, that it does not appear from the plaintiff’s affidavit, and the copy of the promissory note filed therewith, that the said plaintiff is the owner of the note which constitutes his cause of action, or that he has any title thereto.

It does, however, appear that the parties to the action are Otto Miller vs. Wilmington Trust Company, and that the note, a copy of which is filed with the affidavit, is the plaintiff’s cause of action in the said suit. The plaintiff in the action, Otto Miller, swears that he is the plaintiff therein, that the said note constitutes his cause of action, and that there is due and owing to him [253]*253thereon from the defendant the sum of seven thousand dollars, with interest from the seventh day of August, A. D. 1906. We think, therefore, that it does appear, at least prima facie, that the plaintiff is, and was, at the time the action was brought, the holder and owner of the note sued on. Such would seem to be the only reasonable and natural conclusion.

The second ground, urged by the defendant in support of his motion, is that the action is against Wilmington Trust Company, Administrator of Samuel D. Forbes, while the note which constitutes the cause of action is signed by S. D. Forbes. It is contended, therefore, that it does not appear that the person whose administrator is sued, is the person who signed the note.

We think the action being on the note signed by S. D. Forbes, and against Wilmington Trust Company, Administrator of Samuel D. Forbes; and the plaintiff having sworn that there is due and owing from the administrator of Samuel D. Forbes the sum represented by the note, it does sufficiently appear that the maker of the note and the person whose administrator is sued, are one and the same person. If it is not so, it is incumbent on the defendant to show it.

We are of opinion that the reasons urged in support of the motion are not sufficient to warrant the Court in refusing judgment upon the affidavit filed, especially when the plaintiff in his affidavit has complied with all the specific requirements of the statute in that behalf.

The motion is refused.

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Pennewill, C. J.,

delivering the opinion of the Court:

A motion has been made by the defendant in the above stated case that judgment be refused notwithstanding the affidavit of demand, on two grounds.

It is contended first, that it does not appear from the plaintiff’s affidavit, and the copy of the promissory note filed therewith, that the said plaintiff is the owner of the note which constitutes his cause of action, or that he has any title thereto.

It does, however, appear that the parties to the action are Otto Miller vs. Wilmington Trust Company, and that the note, a copy of which is filed with the affidavit, is the plaintiff’s cause of action in the said suit. The plaintiff in the action, Otto Miller, swears that he is the plaintiff therein, that the said note constitutes his cause of action, and that there is due and owing to him [253]*253thereon from the defendant the sum of seven thousand dollars, with interest from the seventh day of August, A. D. 1906. We think, therefore, that it does appear, at least prima facie, that the plaintiff is, and was, at the time the action was brought, the holder and owner of the note sued on. Such would seem to be the only reasonable and natural conclusion.

The second ground, urged by the defendant in support of his motion, is that the action is against Wilmington Trust Company, Administrator of Samuel D. Forbes, while the note which constitutes the cause of action is signed by S. D. Forbes. It is contended, therefore, that it does not appear that the person whose administrator is sued, is the person who signed the note.

We think the action being on the note signed by S. D. Forbes, and against Wilmington Trust Company, Administrator of Samuel D. Forbes; and the plaintiff having sworn that there is due and owing from the administrator of Samuel D. Forbes the sum represented by the note, it does sufficiently appear that the maker of the note and the person whose administrator is sued, are one and the same person. If it is not so, it is incumbent on the defendant to show it.

We are of opinion that the reasons urged in support of the motion are not sufficient to warrant the Court in refusing judgment upon the affidavit filed, especially when the plaintiff in his affidavit has complied with all the specific requirements of the statute in that behalf.

The motion is refused.

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Bluebook (online)

75 A. 789, 24 Del. 251, 1 Boyce 251, 1910 Del. LEXIS 29, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-wilmington-trust-co-delsuperct-1910.