Wiggin v. Massey

90 A. 40, 27 Del. 482, 4 Boyce 482, 1914 Del. LEXIS 58

Opinion

Boyce, J.:

[1] The citation should be served upon the defendant, or defendants, on or before the return day of the writ. Where there are two or more defendants, the citation should be served upon each of them.

In this case one of the defendants has not been served. In appeals from justices of the peace, this court has held two returns of non est inventus equivalent to a service; and where there is failure of personal service of the citation accompanying a writ of error, the Supreme Court will on two returns of non est inventus hear and determine the writ ex parte. Vandergrift v. Page, 5 Harr. 439.

Applying this practice to a proceeding by certiorari, this court will on failure of personal service hear and determine the exceptions on two returns of non est inventus. 1 Woolley, Del. Prac. § 909.

[2, 3] Two of the exceptions: (1) “That the record does not disclose that the summons stated the hour for the defendants’ appearance; (2) that the record does not disclose that either of the parties to the action resided within the territorial jurisdiction of the justice of the peace before whom the action was brought, ’ ’— are fatal.

The last exception is applicable to cases in New Castle County. Revised Code (1893) p. 723 (16 Del. Laws, c. 340).

Judgment reversed.