Proceeding on plaintiffs' motion for new trial and to set aside judgment for defendant on ground of alleged irregularity in drawing of jury panel. The Superior Court, Sussex County, 103 A.2d 245, denied motion. Plaintiffs appealed and defendant filed motion to dismiss appeal. The Supreme Court, Bramhall, J., held that plaintiffs' brief in chief sufficiently alleged abuse of discretion by trial judge to authorize appeal.
W. Howard Thompson, Georgetown, for appellants.
Samuel R. Russell, of Tunnell & Tunnell, Georgetown, for appellee.
SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
This is a motion to dismiss appeal. The question presented is: Does the appeal filed in this case set out an abuse of discretion on the part of the court below in denying a motion for a new trial and to set aside judgment under Rule 60(b)(6) of the Superior Court, Del.C.Ann.?
[49 Del. 80] The appellants (hereinafter plaintiffs) instituted suit in the Superior Court to recover damages arising out of an automobile
accident. At the trial before the court and jury on March 6, 1953, the jury rendered a verdict in favor of the defendant. On May 19, 1953, plaintiffs filed a motion for a new trial and to set aside judgment under Rule 60(b)(6) of the Superior Court upon the grounds: (1) that the jury panel for the term of court in which this case was tried was drawn in the absence of one of the jury commissioners; and, (2) that the said jury panel was drawn three months prior to the commencement of the term of court. Plaintiffs further alleged that the facts relative to the drawing of the jury panel were not discovered until May 18, 1953, and that nothing appeared on the record of the trial court which would give any means of knowledge concerning the matters of which plaintiffs complain. The trial judge held that plaintiffs had not filed their motion for a new trial in accordance with Rule 59(b) of the Superior Court,-not later than ten days after the entry of judgment,-and that therefore plaintiffs' motion as far as it concerned a new trial could not be heard. The trial judge, however, held that the motion was entitled to consideration under Rule 60(b)(6) of the Superior Court. On March 8, 1954, the trial judge issued an opinion, Del.Super., 103 A.2d 245, denying plaintiffs' motion to set aside judgment and grant a new trial. An order was entered on this motion on March 12, 1954. On September 10, 1954, plaintiffs served a notice of appeal to this Court in the following form:
‘ Frank Pitts and Merle Coker, appellants, by W. Howard Thompson, Esquire, their attorney, pray the Supreme Court of the State of Delaware to review the Order filed in Civil Action 357, 1952, in and by the Superior Court in and for Sussex County, State of Delaware, on March 12, 1954, in which the plaintiffs' Motion to Grant a New Trial and to Set Aside a Judgment was denied.'
On October 21, 1954, after the filing of plaintiffs' brief, defendant filed a motion to dismiss the appeal, alleging that whereas in the notice plaintiffs based their appeal upon the refusal [49 Del. 81] of the trial judge to grant the motion for new trial and to set aside the judgment under Rule 60(b)(6), the brief filed by plaintiffs in support of their appeal failed to allege an abuse of discretion on the part of the trial judge.
We think that the trial judge was correct in treating plaintiffs' motion as a motion to set aside a judgment under Rule 60(b)(6) of the Superior Court. As a motion for a new trial, plaintiffs' motion was not timely and could not therefore be considered.
Defendant contends that plaintiffs' appeal from the refusal of the trial judge to grant plaintiffs' motion must necessarily be based upon an abuse of discretion and that since plaintiffs' appeal is not bottomed on such an allegation, it must be dismissed. Plaintiffs concede the necessity of basing their appeal upon an allegation of abuse of discretion on the part of the trial judge. But they assert that such a charge is alleged, in substance if not in so many words, in their main brief and is specifically set forth in their brief in reply. Plaintiffs assert that the selection of the jury panel in the manner alleged by them makes the judgment against them null and void.
Plaintiffs' motion is necessarily predicated upon an allegation of abuse of discretion on the part of the trial judge. See Trowell v. Diamond Supply Co., Del.,91 A.2d 797. We must determine first whether or not the action of the trial judge, if improper, amounted to an abuse of discretion, and, if so, secondly, whether or not abuse of discretion is specifically alleged by plaintiffs. In considering the matter we must bear in mind that the facts of this case are quite different from those in the Trowell case. In the latter case the error complained of was one committed during the trial of the case and hence was one we could and should have reviewed by an appeal ...