Hudson's Administrators v. Messick — 6 Del. 275

Majority

p. 275

Hudson's Administrators v. Nehemiah Messick.

Headnote

When' it is stated in the record that the action was on a “ proved ac-( count,” and after examining the account of the*’ plaintiff, the justice gave judgment, &c., the Court will presume that the account was duly-probated. The same entry is sufficient to sustain a judgment entered by default. No verification of the service of the summons by the constable is necessary, after the defendant has once appeared to the suit.

Certiorari to Nathaniel Connoway, Esq., J. P. The record stated that it was an action on a proved account, and that summons was issued returnable the 22d of March, 1855, on which day the parties appeared, and at the request of the plaintiff the case was adjourned to the 5th proximo, on which day the defendants failed to appear, and that after examining the account of the plaintiff he gave-judgment in his favor against the defendants, for &c. The exceptions to the record were, 1. That judgment had bepn rendered against the exceptants as administrators by default, without the production before the justice of any account regularly probated, or any proof necessary to sustain the action. 2. That the justice had rendered judgment against them by default, without having heard the proofs and allegations of the defendant. 3. And that the same had been rendered by default, without the return of service having been first verified by the affidavit of the constable in writing.

held that as it was stated in the record that the action was on a proved account, it must be intended and presumed, in the absence of anything appearing to the contrary, that the account was properly proved or probated; that it also appeared from the record that the justice had examined the account of the plaintiff before giving judgment, and that there may have been no book of accounts kept by the plaintiff, which is often the case, and which would dispense with the necessity of its production, and which examination by the justice the Court thought sufficient to meet the second - exception. That no verification of the return of service of the summons by the constable was necessary in this case, as the exceptants had previously appeared to the suit, which had always been held sufficient to dispense with the necessity of such verification ; and that the judgment must therefore be affirmed.