Wilmington Gas Co. v. Annest

103 A. 751, 30 Del. 111, 7 Boyce 111, 1918 Del. LEXIS 27

• Court: Superior Court of Delaware
• Decided: May 15, 1918
• Docket: No. 9
• Status: Published

Opinion

Rice, J.,

delivering the opinion of the court:

The Wilmington Gas Company obtained a judgment against Harry Annest, the defendant, before a justice of the peace appointed for Wilmington Hundred, and took an appeal to this court. The defendant moved to dismiss the appeal for the reason that it does not appear from the transcript filed in this court that either the plaintiff or defendant was of Wilmington Hundred or of the Hundred immediately adjoining.

Section 4005, Rev. Code 1915, provides in part that:

“ IJo action shall be brought or maintained before any justice of the peace, appointed for or residing in any hundred in New Castle County, against any person who does not reside within the same hundred of the said justice of the peace, or within a hundred immediately adjoining. * * *

“Every judgment in any action that may be given or entered by any justice of the peace, appointed for or living or residing in any hundred of the county aforesaid, against any person not living or residing in the hundred of the said justice of the peace, or in a hundred immediately adjoining except for criminal offenses, shall be void. * * *

“Provided, that nothing in this section shall debar any bona fide resident, of any hundred of said county, who shall have resided therein for sixty days, from bringing action before any justice of the peace who may reside in the said hundred, against any person residing in any ~ * * hundred in the county aforesaid for any action authorized by law.”

The residence of the parties is a jurisdictional fact in civil trials before a justice of the peace in this county, and under the provisions of the statute, subject to the terms of the proviso above set forth, if the justice enters judgment against any person not living or residing in the hundred of the justice, or in the hundred immediately adjoining, the judgment is void.

Those facts necessary to give the justice jurisdiction of the parties should appear on the record of the justice, and in the transcript of the record on appeal. The failure of the transcript in this case to show either the residence of the plaintiff or defendant to be in the hundred of the justice or in a hundred immediately adjoining, is fatal.

The motion is therefore allowed and the appeal dismissed..