Pond v. Benzik — 29 Del. 451

Majority

p. 451

Frank H. Pond vs. Alex. Benzik.

Headnote

Replevin—Delivery Bond—Erroneous Naming of Defendant—Amendment of Writ.

In replevin, where the sheriff levied on the property, but the defendant was erroneously 'named and interposed in his proper name and gave bond in his proper name, and the sheriff made return that he had replevied the goods and delivered them on counterbond by the defendant in his proper name, erroneously designated in the writ, and summoned the defendant personally in his proper name and counsel for defendant in his proper name entered appearance, the property and the defendant were' in court, and plaintiff should be allowed to amend his praecipe and the writ.

(March 21, 1917.)

Judges Boyce and Conrad sitting.

James I. Boyce for plaintiff.

Caleb E. Burchenal for defendant.

Superior Court, New Castle Comity,

March Term, 1917.

Action of Replevin, No. 28,

January Term, 1917.

Action by Frank H. Pond against Alex Benzik. On plaintiff’s motion to strike bond from the files. Praecipe and writ amended.

On written motion by plaintiff, in substance, that the property bond given by William Benzik to the sheriff may be stricken from the files of the court, and that the sheriff be ordered to return the property replevied by him to the plaintiff, until such time as the defendant in the writ gives a proper bond for the property; or that the praecipe, writ and return thereon may be amended by striking out the name of Alex Benzik and inserting in lieu thereof the name of William Benzik; or that William Benzik may be ordered to interplead in the action, and that the sheriff be ordered to return the property to the plaintiff until such time as the said William Benzik may have filed his interpleadings and given a proper property bond.

The facts appear in the opinion of the court.

delivering the opinion of the court:

This is an action of replevin. The sheriff executed the writ , in so far as to replevy the property mentioned therein. William Benzik then interposed, and gave to the sheriff the following bond:

p. 452

“Be it remembered, that William Benzik and Edgar P. Reese, of the city of Wilmington, New Castle County and State of Delaware, personally appeared before Harry J. Stidham, sheriff of New Castle County aforesaid, and acknowledged to owe to said Harry J. Stidham, sheriff as aforesaid, the sum of eight hundred dollars to be levied on their goods, chattels, lands and tenements respectively, for the use of the said Harry J. Stidham, sheriff as aforesaid, upon the condition that if the above bounden William Benzik, his executors or administrators, be and appear before the Judges of the Superior Court at Wilmington on January 1, A. D. 1917, there to answer the said Dr. Frank H. Pond of a plea of taking and unjustly retaining the said goods and chattels, and shall fully and without delay satisfy any judgment which shall be given against him, the said William Benzik, or his executors or administrators, in said suit, then,” etc.

There is annexed to the bond a warrant of attorney for the confession of judgment thereon in favor of the said Dr. Frank H. Pond.

William Benzik also caused the sheriff to make the following return on the writ:

“Replevied and delivered the within named goods and chattels and afterwards counterbond given by William Benzik erroneously designated in the writ as Alex Benzik and summoned the said William Benzik personally. So ans.,” etc.

Counsel for William Benzik has entered an appearance.

The court is of the opinion that, under the state of the record, both the property and William Benzik, as defendant, are in court; and that the prayer of the plaintiff to amend his prsscipe and the writ by striking out the name of “Alex” and substituting the name of “William” therein should be allowed.

Let the prsscipe and writ be amended accordingly.