Davis v. Denning — 1 Del. 225

Majority

p. 225

ISAAC DAVIS vs. JOHN DENNING, THOMAS DUHADAWAY, and JOHN M. DENNING.

Headnote

If referees report against a person not regularly a party in the cause the report as to him is a nullity and no judgment can be rendered upon it; but it will not vitiate the report as to other parties.

Certiorari to justice.

Thomas Duhadaway and John M. Denning had been duly sum® maned by the constable and non est inventus returned as to John Denning. J. M. Denning and Duhadaway appeared and claimed a trial by freeholders who were appointed. John Denning did not appear. The referees reported no cause of action against Duhadaway and J. M. Denning and that $35 29 was due from John Denning to plff. whereupon the justice gave judgment against Davis for costs.

—In this case Duhadaway and J. M. Denning were the only parties before the justice. They submitted the matters in controversy to referrees, who decided that they were not indebted to the plff., and on this part of their award the justice properly gave judgment against Davis for-costs. They further reported that John Denning was indebted to the plff. in the sum of $35 29. They might with equal propriety have reported that any other person not a party to the record was so indebted. John Denning was not before them and they had no authority to pass upon his rights. The award therefore against John Denning being against a person not a party to the record is a nullity and void; the justice could not have given any judgment against him upon that award; and therefore the judgment against Davis for costs was a proper judgment and the proceedings below must be affirmed with costs.

Judgment affirmed.