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Canaday v. Superior Court of State in and For New Castle County

Supreme Court of Delaware

September 8, 1955

Ward M. CANADAY, Petitioner,
v.
The SUPERIOR COURT of the State of Delaware in and for NEW CASTLE COUNTY, and the Honorable Charles L. Terry, sitting as Judge of said Court, Respondents. Katharine R. Brainard, Executrix under the Last Will and Testament of Miller Brainard, Deceased, and Samuel Vance, Jr., Intervening Respondents.

Prohibition proceeding was brought against the Superior Court of the State of Delaware in and for New Castle County and the Judge thereof to prohibit the Superior Court from assuming jurisdiction of action against petitioner for brokerage commissions. The Supreme Court, Wolcott, J., held that correctness of ruling of Superior Court that petitioner, in entering a general appearance as defendant in action against him in Superior Court for brokerage commissions, submitted himself to in personam jurisdiction of the Superior Court, despite invalidity of original writ of foreign attachment, could be considered by Supreme Court on writ of prohibition, because of inadequacy of ordinary appellate procedure.

Petition set down for argument.

Page 679

Edwin D. Steel, Jr., of Morris, Steel, Nichols & Arsht, Wilmington, for petitioner.

James R. Morford, of Morford & Bennethum, Wilmington, for intervening respondents.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

WOLCOTT, Justice.

This is a petition for a writ of prohibition against the Superior Court of New Castle. On December 22, 1953, an action was commenced in the Superior Court against Canaday, the petitioner herein, alleging a cause of action for brokerage commissions due the plaintiffs, the intervening respondents herein. The action was commenced by the filing of a complaint and the issuance of a writ of foreign attachment, under which the sheriff, on December 22, 1953, purportedly seized all the [49 Del. 335] shares of stock in Empire Securities, Inc. belonging to the petitioner. The purported writ of foreign attachment served by the sheriff and the copy of the writ left by him with the resident agent of the corporation bore the seal of the Superior Court and a rubber stamp facsimile of the signature of the Prothonotary.

Page 680

On April 26, 1954, on motion of the plaintiffs, a judgment nisi was entered in the cause against the petitioner. On the same day, the petitioner entered a general appearance and four days later filed an answer to the merits of the action and, also, two affirmative defenses attacking the validity of the writ of foreign attachment.

Thereafter, in advance of a hearing on the merits, the Superior Court heard argument on the affirmative defenses and on March 30, 1955 filed its opinion, Del.Super., 112 A.2d 862, holding (1) that the original writ of attachment was invalid since it bore only a facsimile signature of the Prothonotary contrary to Rule 4(c) of the Superior Court, Del.C.Ann., requiring that all process shall be signed by the Prothonotary, (2) that the purported copy of the writ (characterized as a ‘ duplicate original’ ) left with the resident agent was a substantial compliance with 8 Del.C. § § 324(b) and 321 requiring that a certified copy of the original writ be left with the resident agent, but (3) that by entering a general appearance and filing an answer to the merits the petitioner had submitted himself to in personam jurisdiction of the Superior Court, despite the invalidity of the original writ of foreign attachment.

Thereafter, the petitioner petitioned this court for a writ of prohibition, asserting that the Superior Court proposed to enter an order overruling the affirmative defenses of the petitioner and directing that the cause proceed to trial on the merits on the ground that the petitioner had subjected himself to in personam jurisdiction of that court. The plaintiffs below were permitted to intervene as respondents, and the petition was set down for hearing.

[49 Del. 336] The brief of the petitioner sets forth three points in support of the issuance of a writ of prohibition. Points 1 and 2 relate to the legality of the writ of foreign attachment which the Superior Court has held to be invalid. Point 3 asserts error in the holding of the Superior Court that petitioner, by entering a general appearance and answering to the merits of the complaint, submitted to in personam jurisdiction of the Superior Court.

The intervening respondents moved to strike Points 1 and 2 from the petitioner's brief on the ground that these questions had been resolved by the court below in favor of the petitioner and that therefore the Superior Court was not threatening to take jurisdiction over the cause and the petitioner in reliance upon its ruling upon those questions. While the motion of the intervening respondents is in form a motion to strike portions of the brief, we regard it as a motion to limit the issues to be argued on the petition for prohibition.

We agree with the position of the intervening respondents with respect to Points 1 and 2 of the petitioner's brief. In Clendaniel v. Conrad, 3 Boyce 549, 83 A. 1036, it was held that a writ of prohibition will issue from a superior to an inferior tribunal solely for the purpose of preventing the inferior tribunal from exceeding the limits of its jurisdiction. It necessarily follows therefore, that if the inferior tribunal has denied is jurisdiction based ...


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