Bupp v. Kleitz

Citations

• 11 Del. Ch. 346
• 101 A. 878
• 1917 Del. Ch. LEXIS 26

Syllabus

<p>As the writ of certiorari does not, under Rev. Code 1915, § 4083, effect a stay of proceedings, such writ does not, where irregularities in a judgment rendered by a justice of the peace did not appear of the face of the record, afford an adequate remdey at law, preventing a proceeding to enjoin enforcement of the judgment, even though the irregularities might have been brought into the record by some auxiliary proceeding.</p> <p>The omissiqn of the return day from- a writ of summons .issued by a justice of the peace is no ground for enjoining the enforcement of the judgment rendered by the justice, though the writ was irregular, for the purpose of the writ of summons is to give notice to the defendant of the time and place of hearing, and defendant had such notice; the date being fulled in by the constable at the time of the service of the writ.</p> <p>As Rev. Code 1915, § 4009, allowing a defendant in justice court one adjournment,- does not apply to the summary remedy given landlords against holding-over tenants, and section 4075 merely declares that a justice may grant an adjournment, the refusal of a justice to grant defendant in summary proceedings an adjournment does not warrant the enjoining of his judgment.</p> <p>That the constable, after serving one writ of summons, served another writ specifiying a later return day, does not warrant the enjoining of a judgment of a justice of the peace, based on the first writ, upon the ground of confusion or mistake, for service of the second did not relieve defendant of the duty to appear according to’ the command of the first.</p>