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Kaufman v. Crist

Supreme Court of Delaware

June 26, 1956

Kay KAUFMAN, Appellant,
Elizabeth CRIST and Carel Crist, Appellees.

[50 Del. 108] Nathan P. Michlin, Wilmington, for appellant.

George L. Sands, of the firm of Morford & Bennethum, Wilmington, for appellees.


BRAMHALL, Justice.

Appellant started suit before a Justice of the Peace for damage to her automobile as a result of an accident. Before the institution

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of suit she filed a statement of facts as required by Title 10 Del.C. § 9611(a). The statement was signed by her attorney in the case and not by plaintiff personally. Appellees not appearing at the trial, judgment by default was entered in favor of appellant against appellees. Appellees filed a praecipe for a writ of certiorari to the Superior Court, stating as their sole exception to the judgment the fact that the statement of facts was signed by appellant's counsel and not by appellant personally. The Superior Court reversed the judgment before the Justice of the Peace and appellant appealed to this court.

The sole question is: Does the language of Title 10 Del.C. § 9611(a) permit plaintiff's counsel in a trespass action before a Justice of the Peace to sign the statement of facts required by the statute? If it does not, the judgment of appellant cannot stand, since the Act is mandatory. Howell v. Eastburn, 9 W.W.Harr. 588,2 A.2d 899. See 1 Woolley on Delaware Practice, Sec. 927, p. 646.

The statute involved, Title 10 Del.C. § 9611(a), provides as follows:

'(a) In trespass actions under section 9303 of this title, before the summons is issued, the plaintiff shall file a written statement under hand describing the injury of which he complains.'

The word 'hand' as used in legal phraseology means signature or handwriting. State v. Fleming,240 Mo.App. 1208, [50 Del. 110] 227 S.W.2d 106; Beatty v. Hughes,61 Cal.App.2d 489, 143 P.2d 110. See 1 Bouvier's Law Dictionary, 3rd Ed., p. 1416; Black's Law Dictionary, 4th Ed., 1951, p. 845. It is clear from the language of the statute that the statement required to be filed by plaintiff must be signed, but it is not clear from a reading of the statute by whom the statement must be signed. There is therefore room for construction. Nigro v. Flinn, 8 W.W.Harr. 368,38 Del. 368, 192 A. 685.

In Chapter CX of Volume 4, Laws of Delaware 1810, page 310, Justices of the Peace were given jurisdiction in actions of trespass vi et armis, the statute providing for the trial of such actions in the same manner as actions for debt. In Chapter CXIX of Volume 6, Laws of Delaware 1822, page 402, it was provided that no warrant for such action should be issued by a Justice of the Peace 'until the person applying for the same shall file with him a statement in writing, specifying the nature of the injury complained of.' In the Act of January 30, 1829, Laws of Delaware 1829, page 359, it was provided that: 'Before a summons or capias is issued in such action, the plaintiff or his attorney or agent shall file a written statement under his hand describing the injury complained of.' In the Code of 1852, the words 'or his attorney or agent' appearing after the word 'plaintiff', and the word 'his' appearing before the word 'hand' were deleted from this section.

What was the intention of the Commission on Revision in making this change in language? The purpose of a statement of this nature is to set out those facts upon which plaintiff bases his claim. The question of whether or not this statement is signed by plaintiff personally or by his counsel in the case would not seem to be of importance. Certainly we know of no reason why the legislature should have provided, if it did, that such a statement must be signed by the plaintiff personally. It is clear that the omission of the words 'or his attorney or agent', standing alone, would seem to indicate that the Commission on Revision and the legislature of this State intended to revoke the authority of anyone other than the plaintiff in the [50 Del. 111] action to sign the required statement. But this interpretation does not explain the striking out of the word 'his' before the word 'hand'. If the latter had not been stricken out, the language used by the Commission would have been entirely clear. As it is, the language is somewhat confusing.

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In the preface to the Code of 1852, it is recited that a Board of Commissioners was authorized to make a revision of the ten volumes of the statutes by virtue of a joint resolution passed by the Senate and House of Representatives of the State of Delaware. It is true that under this authority,--unlike the authority contained in later enactments providing for the compilation of a Code of statutory law,--the Commissioners were authorized to omit provisions which they should consider unnecessary and to vary existing provisions where such would render the general system consistent or more perspicuous or better adapted to circumstances. Undoubtedly, therefore, under the authority of this joint resolution, the Commission on Revision was authorized to make some changes within the limits of the language of the joint resolution. However, it will be noted that the paramount purpose of the preparation of the Code, as stated in the preface, was 'to revise the public laws of this State now in force and digest and arrange the same under appropriate titles so as to comprise the whole into the smallest practicable volume.' It is also significant that the Commission of Revision referring to its authority to make changes in the statutes, said: 'The joint resolution gave to the revisers a large discretion in reference to changes of the law, which has been sparingly exercised. [1] From a thorough and critical examination of the whole body of our statute law they were impressed with a high sense of its completeness as a system, and of its defectiveness in arrangement and expression. Their efforts were directed more to simplifying and arranging than to changing the law.'1

Apparently, therefore, although under the joint resolution above referred to the Commission of Revision was authorized to [50 Del. 112] make changes in the statutes, it rarely did so. A casual examination of the statutes incorporated in the Code seems to bear out the statement in the preface. In the Chapter of which the section in question is a part, we find a number of instances where changes are made in the language as found in the 1829 statute. All of these changes relate entirely to an effort to clarify and simplify the language of the statute; there is no substantial change in the body of the law. This is illustrated by the ...

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