Szymanski v. Hearn

Superior Court of Delaware

Szymanski v. Hearn

61 A.2d 656, 44 Del. 468, 5 Terry 468, 1948 Del. Super. LEXIS 109

Superior Court of Delaware·Decided October 12, 1948·No. Civil Action, 1948·Published·Cited by 1 cases

Opinion

Layton, J.

An examination of the authorities discloses that, until comparatively recently, when judgments were entered upon warrant of attorney for a penalty, the condition being for the performance of some collateral undertaking rather than for a sum certain, Defendant’s only recourse was to remain idle until such time as execution might be issued for a larger amount than the damages sustained, at which time he could seek relief in Equity. Woolley, Delaware Practice, Sec. 792. Staats v. Herbert, 4 Del.Ch. 508. To me, such a practice seems peculiarly inept. Moreover, in many cases it operates as a hardship upon the Defendant. I am of the [470]*470opinion that, upon application in a proper case, the Court in which the judgment is entered, should have the inherent power to order it opened for the purpose of ascertaining the correct amount due. There is authority for the conclusion here reached. Rhoads v. Mitchell, 4 Terry 343, 47 A. 2d 174.

The judgment here will be re-opened and the issue as to the amount due submitted either to the Court or jury as counsel may elect.

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Layton, J.

An examination of the authorities discloses that, until comparatively recently, when judgments were entered upon warrant of attorney for a penalty, the condition being for the performance of some collateral undertaking rather than for a sum certain, Defendant’s only recourse was to remain idle until such time as execution might be issued for a larger amount than the damages sustained, at which time he could seek relief in Equity. Woolley, Delaware Practice, Sec. 792. Staats v. Herbert, 4 Del.Ch. 508. To me, such a practice seems peculiarly inept. Moreover, in many cases it operates as a hardship upon the Defendant. I am of the [470]*470opinion that, upon application in a proper case, the Court in which the judgment is entered, should have the inherent power to order it opened for the purpose of ascertaining the correct amount due. There is authority for the conclusion here reached. Rhoads v. Mitchell, 4 Terry 343, 47 A. 2d 174.

The judgment here will be re-opened and the issue as to the amount due submitted either to the Court or jury as counsel may elect.

Szymanski v. Hearn, 61 A.2d 656, 44 Del. 468, 5 Terry 468, 1948 Del. Super. LEXIS 109 (Del. Ct. App. 1948).

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Opinion

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