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In re Parker

18 Del. 336 2 Penne. 336 Court Court of General Sessions, Kent County, Decision date 1899-11-15 English

Delivered by Lore, C. J.:

Contents

Majority

p. 336
In Re Petition of John D. Parker, et al., for a Public Road in Duck Creek Hundred, Kent County, Delaware.

Headnote

Road—Notice—Service—Proof—Practice.
In an application for the appointment of commissioners to lay out a public road the Court will refuse to make an order.—(i) When there is no proof of service of the notice by affidavit, and there has been no proof made in open Court; (2) when the description of the road in the petition does not correspond with the description in the notice; (3) when the notice is not signed by the petitioners.
(Nov. 15, 1899.)
Lore, C. J., and Pennewill and Boyce, J. J., sitting.
John I). Hawkins for Petitioners and for Levy Court.
Court of General Sessions, Kent County,
October Term, 1899.
Petition for a public road in Duck Creek Hundred, in said County.
The petition was as follows:
p. 337
“To the Honorable, the Judges of the Court of General Sessions of the State of Delaware in and for Kent County.
“The undersigned, citizens of Duck Creek Hundred, representing all parties interested, respectfully represent:
“That there is great need of .a public road, in Duck Creek Hundred, in Kent County and State of Delaware, beginning at the end of the Parker Road near the residence of Frank Reiman and extending in a southerly direction to a point in the Spruance Neck Road leading to the State Road and near the residence of John P. Jones.
“They therefore pray your honorable Court to appoint five suitable persons to view the premises and make return according to law. And they will ever pray, etc.”
The notice set forth the following:
“To Miss Sallie C. Spruance:—Notice is hereby given that a petition signed by Jullia A. Collins, John D. Parker and others will be presented to the Court of General Sessions of the State of Delaware in and for Kent County, at Dover on Wednesday the 15th day of November, 1899, praying the appointment of commissioners to lay out a new road in Duck Creek Hundred, in Kent County and State of Delaware; the proposed road to begin at a point at the northern terminus of the new road called the Parker Road near the residence of Frank Reiman, and to extend in a southerly direction through lands of Frank Reiman and wife, lands of one Speakman; lands of John D. Parker and John K. Harkins; and lands owned by you and to terminate at or near the residence of John P. Jones, on the Spruance Neck Road.
“ John D. Hawkins,
“ Attorney for Petitioner and for Levy Court of Kent County. Nov. 2, 1899.”
p. 338
The notice was endorsed as follows:
“ Served by leaving a copy on the lands of Sallie C. Spruance herein mentioned, with her tenant Carey Frazier.
“Peter P. Collins.”
Dated Nov. 3, 1899.
The exceptions filed appear in the opinion of the Court.

The first exception is that there is no proof of service of the notice by affidavit, nor has there been any proof made in open Court. Another exception is that the description of the road in the petition does not correspond to the description in the notice. The third is that the notice is not signed by the petitioners.

We think all of the exceptions are fatal, and for that reason we decline to make the order. .