S. & S. BUILDERS, INC. v. Eagle Truck Transport, Inc.

Superior Court of Delaware

S. & S. BUILDERS, INC. v. Eagle Truck Transport, Inc.

130 A.2d 558, 50 Del. 346, 11 Terry 346, 1957 Del. Super. LEXIS 70

CourtSuperior Court of Delaware

DecidedMarch 18, 1957

Docket1100

StatusPublished

Cited by9 cases

This text of 130 A.2d 558 (S. & S. BUILDERS, INC. v. Eagle Truck Transport, Inc.) 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

S. & S. BUILDERS, INC. v. Eagle Truck Transport, Inc., 130 A.2d 558, 50 Del. 346, 11 Terry 346, 1957 Del. Super. LEXIS 70 (Del. Ct. App. 1957).

Pincite

Opinion

Layton, J.:

Plaintiff’s motion to dismiss the appeal must be granted. Superior Court Rule 3(d), Del. C. Ann. requires that applications for the amendment of the transcript of docket entries be made on or before the fifth day after the filing of the praecipe and transcript. Since defendant failed to make any application whatsoever, the filing of the second transcript was a nullity. This forces us back to the first transcript which failed to show that the bond had been signed by a surety. 10 Del. C. § 9579(a) sets out a form of surety bond to be given in cases of *348 appeals from Justices of the Peace to this Court. Subsec. (b) states that the entry of security shall be signed by the sureties or it shall be void. Since no surety signed the bond, it is, of course, void. Defendant seeks to excuse the defect by showing that, in fact, a cash deposit was made in lieu of a surety bond and that the transcript so shows. This will not do. Where the statute specifically provides for a surety bond on appeal, sets forth in exact words the type of bond required and fails to provide for a deposit of cash as an alternative, then it must be assumed that the legislature intended that a surety bond was the only proper means of affording security. J. R. Watkins Co. v. Guess, 196 Miss. 438, 17 So. 2d 795; Ringgold v. Graham, Tex. Com. App., 13 S. W. 2d 355; Culp v. Feyh, 138 Kan. 854, 28 P. 2d 734.

The appeal must be dismissed.

Free access — add to your briefcase to read the full text and ask questions with AI

Layton, J.:

Plaintiff’s motion to dismiss the appeal must be granted. Superior Court Rule 3(d), Del. C. Ann. requires that applications for the amendment of the transcript of docket entries be made on or before the fifth day after the filing of the praecipe and transcript. Since defendant failed to make any application whatsoever, the filing of the second transcript was a nullity. This forces us back to the first transcript which failed to show that the bond had been signed by a surety. 10 Del. C. § 9579(a) sets out a form of surety bond to be given in cases of *348 appeals from Justices of the Peace to this Court. Subsec. (b) states that the entry of security shall be signed by the sureties or it shall be void. Since no surety signed the bond, it is, of course, void. Defendant seeks to excuse the defect by showing that, in fact, a cash deposit was made in lieu of a surety bond and that the transcript so shows. This will not do. Where the statute specifically provides for a surety bond on appeal, sets forth in exact words the type of bond required and fails to provide for a deposit of cash as an alternative, then it must be assumed that the legislature intended that a surety bond was the only proper means of affording security. J. R. Watkins Co. v. Guess, 196 Miss. 438, 17 So. 2d 795; Ringgold v. Graham, Tex. Com. App., 13 S. W. 2d 355; Culp v. Feyh, 138 Kan. 854, 28 P. 2d 734.

The appeal must be dismissed.

Cite This Page — Counsel Stack

Bluebook (online)

130 A.2d 558, 50 Del. 346, 11 Terry 346, 1957 Del. Super. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/s-s-builders-inc-v-eagle-truck-transport-inc-delsuperct-1957.

Opinion

Related

Cite This Page — Counsel Stack