Armstrong v. George Brockson — 19 Del. 587

Majority

p. 587

Edward Armstrong, d. b. a., vs. George Brockson, p. b. r.

Headnote

Justice of Peace—Appeal; By Defendanl—Statute; Construction of—Set-off—Practice.

Under the statute, {Rev. Code 754), a defendant has no right to take an appeal where the judgement against him is for the sum of five dollars, unless his counter claim or set-off, or a part thereof exceeding five dollars, has been disallowed by the justice.

(June 25, 1902.)

Lore, C. J., and Pennewill and Boyce, J. J., sitting.

John H. Rodney for appellant.

Walter L. Willis for respondent.

Superior Court, New Castle County,

May Term, 1902.

Appeal (No. 144,

November Term, 1901).

Motion to dismiss appeal under the statute (Rev. Code 754, Sec. 24, Chap. 99).

The application is to dismiss the appeal. The claim of the plaintiff below was for $20, and judgment was entered by the Justice of the Peace without referee trial in favor of the plaintiff and against the defendant for $5. From the record there does not appear to have been any counter claim or set-off on the part of the defendant who took the appeal.

Section 24, Chapter 99, Revised, Code, page 754, provides:

“ Appeals shall be allowed from judgments given by justices of the peace, to the Superior Court, as follows : First, from every judgment given by the justice, without referee trial, to an amount exceeding five dollars, exclusive of costs, the party against whom such judgment shall be given may appeal; or in case any part of

p. 588

the plaintiff’s demand, or of the defendant’s counter claim, or set-off, exceeding five dollars, is disallowed (or defaulked) by the justice, such plaintiff or defendant may appeal,” etc.

Under the statute, the defendant had no right to take an appeal, unless his counter claim or set-off, or a part thereof exceeding five dollars, had been disallowed by the justice.

It does not appear that there was any counter claim or set-off in the case.

We therefore order the appeal dismissed.