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Brainard v. Canaday

Superior Court of Delaware, New Castle County

March 30, 1955

Katharine R. BRAINARD, Executrix under the Last Will and Testament of Millar Brainard, deceased, and Samuel Vance, Jr., Plaintiffs,
v.
Ward M. CANADAY, Defendant.

Action instituted by process of foreign attachment on shares of stock of defendant. On motion by defendant to hear and determine before trial certain jurisdictional defenses, the Superior Court, Terry, J., held that where defendant entered his general appearance, the action was converted from one in rem to one in personam and defendant by entering his general appearance submitted himself to the in personam jurisdiction of court irrespective of lack of service of process or of any defects therein and he could not thereafter challenge lack of jurisdiction over his person and sufficiency of process, but original writ of attachment, which was not signed by the prothonotary was invalid.

Order accordingly.

Page 863

James R. Morford, of the firm, Morford & Bennethum, Wilmington, for plaintiffs.

Edwin D. Steel, Jr., of the firm, Morris, Steel, Nichols & Arsht, Wilmington, for defendant.

TERRY, Judge.

This action originated as a cause of action in foreign attachment in pursuance to the provisions of Section 3506, Title 10, Delaware Code, 1953. The complaint with the required affidavit was filed on December 22, 1953. A writ of foreign attachment was issued and was served on the same day by the Sheriff upon The Corporation Trust Company, the corporate resident agent of two Delaware corporations, Empire Securities, Inc. and Willys Overland Motors, Inc.

[49 Del. 184] On January 11, 1954, The Corporation Trust Company, resident agent, delivered to the Sheriff a certificate designating the number of shares of stock of Empire Securities, Inc. registered on its books in the name of Ward M. Canaday on December 22, 1953, and stating that no shares of stock of Willys Overland Motors, Inc. were registered in the name of Ward M. Canaday on December 22, 1953, as appeared by the books of Willys Overland Motors, Inc. This certificate is attached to the Sheriff's return and states in part as follows:

‘ In making this report The Corporation Trust Company makes no concession as to the validity of the attachment herein.’

The Sheriff on the same day, January 11, 1954, filed his return of process with the Prothonotary. The return stated in part that the Sheriff had attached all of the shares of stock in Empire Securities, Inc., a Delaware Corporation, belonging to the defendant ‘ by serving the within writ personally upon and leaving a true copy thereof, together with a copy of the complaint, with the Assistant Secretary of The Corporation Trust Company, resident agent for Empire Securities, Inc., on December 22, 1953.’ By order of the Court, dated April 21, 1954, leave to amend the original return was granted the Sheriff, and the original return was amended to state that all of the shares of stock in Empire Securities, Inc. belonging to the defendant had been attached ‘ by serving the within writ personally upon and leaving a duplicate original thereof signed by the Prothonotary of New Castle County, with the official seal of the Superior Court of New Castle County and State of Delaware impressed thereon, together with a copy of the complaint, with the Assistant Secretary of The Corporation Trust Company on December 22, 1953.’

On April 9, 1954, defendant, by his counsel, petitioned the Superior Court ‘ for permission to appear specially for Ward M. Canaday solely for the purpose of moving to quash the writ of foreign attachment, to set aside the Sheriff's return, and to dissolve the purported attachment made under the writ.’ The [49 Del. 185] petition was never determined by the Court. No special appearance was entered by the defendant.

The defendant not having appeared during the first term (January Term), the plaintiffs on April 21, 1954, (second term) filed with the Prothonotary a written direction for judgment in compliance with the provisions of Section 3526, Title 10, Delaware Code, 1953, and Rule 55 of this Court.[1]

The March Term (second term) of the Superior Court would in due course have

Page 864

adjourned not later than May 3, 1954, immediately prior to the convening of the May Term, 1954. Upon the adjournment of the March Term the judgment by default would have been final pursuant to the direction and the Rule.

On April 26, 1954, the defendant, by counsel, filed with the Prothonotary the following direction:

‘ Please enter forthwith my general appearance on behalf of Ward M. Canaday, defendant in the above action.’

Copy of notice of appearance was served by the defendant on the same day upon counsel for the plaintiffs:

‘ You are hereby notified that I am today filing the above direction to the Prothonotary to enter my general appearance for Ward M. Canaday, defendant in the above action.’

On April 27, 1954, defendant's counsel filed a motion to vacate the judgment which the Prothonotary had entered pursuant to plaintiffs' direction as of April 21, 1954.[2]

On April 29, 1954, Judge Herrmann entered an order on motion of defendant's counsel, amending the judgment to read as follows:

[49 Del. 186] ‘ And now to wit this 26th day of April, A.D. 1954, judgment by default, pursuant to Rule 55(1) be entered in favor of the plaintiffs and against the defendant in the sum of $567,000.00, plus 6% from January 1, 1953 amounting to $44,982.00, besides costs, etc., such judgment to become final upon the adjournment of the March Term 1954 of the Superior Court in and for New Castle County, in the event that the defendant shall not have entered a general appearance in this cause at the time of the adjournment of the March Term, 1954, of the Superior Court.’

The order directed the Prothonotary to enter in the Judgment Docket, immediately following the judgment so amended and modified, the following quotation:

‘ The above judgment is entered nunc pro tunc as of 9:23 a. m. Eastern Standard Time, April 26, 1954, pursuant to order of the Superior Court, dated April 29, 1954’ .

On April 30, 1954, during the March Term (second term) of the Superior Court the defendant filed an answer to the complaint signed by his counsel, who theretofore on April 26, 1954, had entered a general appearance for him, as above indicated.

The claim asserted by the complaint embraces two causes of action. It is for compensation for services, as brokers, rendered by the plaintiffs to and on behalf of the defendant in bringing about the sale of defendant's controlling stock interest in Willys Overland Motors, Inc. The first cause of action is upon the theory of express contract. The second cause of action is a claim on the quantum meruit, or implied contract.

The answer filed by the defendant in numbered paragraphs 1 to 17, inclusive, consists merely of admissions, denials, and statements of no knowledge of the facts alleged in the corresponding paragraphs of the complaint.

Under paragraphs 18, 19, 20, and 21 of the answer the defendant has set forth certain affirmative defenses. Without attempting to paraphrase the substance set forth under these defenses, I shall quote them as they appear in the answer.

[49 Del. 187] ‘ First Affirmative Defense to the First and Second Causes of Action.

‘ 18. Since defendant resided outside of the State of Delaware, simultaneously with the institution of the action ...


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