Weir v. Devine

Superior Court of Delaware

Weir v. Devine

98 A.2d 778, 48 Del. 102, 9 Terry 102, 1953 Del. Super. LEXIS 72

CourtSuperior Court of Delaware

DecidedJuly 27, 1953

Docket8

StatusPublished

Cited by3 cases

This text of 98 A.2d 778 (Weir v. Devine) 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

Weir v. Devine, 98 A.2d 778, 48 Del. 102, 9 Terry 102, 1953 Del. Super. LEXIS 72 (Del. Ct. App. 1953).

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Opinion

*103 Layton, J.:

The subject matter of this motion concerns due process of law, and Sec. 4590 must be strictly construed, Webb Packing Co. v. Harmon, 9 W. W. Harr. 22, 196 A. 158. In McLean Trucking Co. v. Stover, 8 Terry 110, 87 A. 2d 879, 880, Judge Terry held that the word “forthwith” means with “reasonable dispatch consistent with the circumstances presented.” He concluded that the sending of the registered letter required by Sec. 4590 some three months after service upon the Secretary of State was not a forthwith mailing. Defendant argues that in this case, plaintiff did not complete registered notice as required by Sec. 4590 until four months after service upon the Secretary of State and, accordingly, this case comes squarely within the holding of the McLean case just referred to.

Whether or not the three months’ period during which plaintiff’s attorney may have been using every effort promptly to obtain a new address for defendant should be counted, I do not decide. Compare Paxson v. Crowson, 8 Terry 114, 87 A. 2d 881. The fact remains that defendant’s new address was received by plaintiff’s Delaware counsel on May 15, 1952. He did not send the required notice by registered mail to defendant until June 10. In my judgment, an unexplained delay of 25 days is not a forthwith mailing as contemplated by the statute.

Let the return of service be quashed.

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*103 Layton, J.:

The subject matter of this motion concerns due process of law, and Sec. 4590 must be strictly construed, Webb Packing Co. v. Harmon, 9 W. W. Harr. 22, 196 A. 158. In McLean Trucking Co. v. Stover, 8 Terry 110, 87 A. 2d 879, 880, Judge Terry held that the word “forthwith” means with “reasonable dispatch consistent with the circumstances presented.” He concluded that the sending of the registered letter required by Sec. 4590 some three months after service upon the Secretary of State was not a forthwith mailing. Defendant argues that in this case, plaintiff did not complete registered notice as required by Sec. 4590 until four months after service upon the Secretary of State and, accordingly, this case comes squarely within the holding of the McLean case just referred to.

Whether or not the three months’ period during which plaintiff’s attorney may have been using every effort promptly to obtain a new address for defendant should be counted, I do not decide. Compare Paxson v. Crowson, 8 Terry 114, 87 A. 2d 881. The fact remains that defendant’s new address was received by plaintiff’s Delaware counsel on May 15, 1952. He did not send the required notice by registered mail to defendant until June 10. In my judgment, an unexplained delay of 25 days is not a forthwith mailing as contemplated by the statute.

Let the return of service be quashed.

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Bluebook (online)

98 A.2d 778, 48 Del. 102, 9 Terry 102, 1953 Del. Super. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weir-v-devine-delsuperct-1953.

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