SUSSEX FINANCE CO.
The Sussex Finance Company, a Delaware corporation, secured seven confessed judgments against Raymond S. Goslee and in each instance the defendant filed separate petitions asking that the judgments be opened and the plaintiff filed a motion to dismiss the petitions of the defendant. The Superior Court for Sussex County, Carey, J., held that in some of the actions the petitions to open were sufficient whereas in some of the others the petitions were insufficient.
Order in accordance with opinion.
A petition to open a confessed judgment, which alleged that petitioner upon learning of wrecking of automobile covered by note promptly requested plaintiff to ask insurance representative to call upon him for purpose of assessing damage, but that plaintiff failed to proceed against insurance company, was insufficient as against motion to dismiss, since in absence of any agreement plaintiff was not absolutely bound to proceed against insurer even though that was requested by petitioner.
[46 Del. 244] Sussex Finance Company is in the business of financing automobiles and other personal property on the installment plan and
Raymond S. Goslee is an automobile dealer. The transactions which gave rise to the present difficulties began with several sales of motor vehicles on various dates by Goslee to sundry individuals. The vendees executed judgment notes accompanied by conditional sales contracts in favor of the vendor, who promptly endorsed the notes and assigned the sales agreements to plaintiff. The endorsements on the notes waived demand and notice of non-payment and contained warrants of attorney to confess judgment against the endorser. In each of these seven instances, the vendee failed to make payments due and plaintiff entered judgments against petitioner as endorser. Goslee has filed separate petitions asking, in five instances, that the judgments be opened to determine the amount due. In No. 75, the prayer is that the judgment be declared null and void or, in the alternative, that it be opened to determine the amount due. In [46
Del. 245] No. 80, the prayer simply seeks ‘ relief’ from the judgment, following an allegation that it is fully paid and satisfied. The matter is now before the Court upon plaintiff's motion to dismiss these petitions.
Additional facts appear in the opinion of the Court.
Howard W. Bramhall, of Georgetown, for plaintiff.
Daniel J. Layton, Jr., of Georgetown, for defendant-petitioner.
In several of these cases, it is alleged that plaintiff has failed to allow credit for certain payments made by the vendees prior to the entry of judgment. Plaintiff does not dispute this statement and has agreed to allow the proper credits. In view of that stipulation, this point will be ignored.
The individual cases are not alike in every respect and require separate discussion. The motions now before the Court are in the nature of a demurrer and raise only the question whether or not the petitions make out proper cases for relief. For present purposes, therefore, all allegations of fact contained therein are accepted as true. It is to be presumed, however, that petitioner has stated his case in the manner most favorable to himself. Zink v. Kessler Trucking Co., 8 W.W.Harr. 271, 190 A. 637.
It is said that the petitions in all seven cases should be dismissed because they are not verified. Cf. Chandler v. Miles, 8 W.W.Harr. 431, 193 A. 576.This technical criticism is not mentioned in ...