State Ex Rel. Caulk v. Nichols ( 1971 )

CAREY, Justice

(For the majority of the Court).

The relators, Bernard Caulk and Delores Caulk, his wife, were the defendants in an action brought by their landlord, a corporation, to recover unpaid rent for the dwelling house in which they lived. The action was brought in Magistrate Court No. 13, where it was heard by Justice of the Peace Nichols, appellee herein. The amount of the judgment was $300.00, plus costs. The relators requested an appeal to the Superior Court without furnishing security as required by 10 Del.C. § 9578 (b). Judge Nichols refused to permit the appeal in the absence of surety on the bond, on the ground that he had no power to waive the bond requirement. Relators then instituted this mandamus action in Superior Court to compel the Justice of the Peace to allow the appeal without surety. The Superior Court decided the matter adversely to the relators, 267 A.2d 610, whereupon this appeal followed.

10 Del.C. §§ 9578(b) and 9578(d) read as follows:

“(b) The party appealing shall offer security in such sum as the justice deems sufficient to cover the judgment appealed from and the costs on the appeal. sjs * *

“(d) When the plaintiff is the appellant and no counterclaim is involved, such plaintiff need offer no security to cover the judgment appealed from or the costs; provided, that the costs of the proceedings before the Justice are paid before the appeal is taken and the advance deposit for costs provided in the Superior Court Rules is made.”

The issues presented are whether a Justice of the Peace has the inherent power to waive the surety required by this statute and, if not, whether the requirement as applied to indigent persons violates the State and Federal Constitutions.

This Court has previously held that the provision for a bond in § 9578(b) is to “afford protection to the successful litigant —to ensure the recovery of his debt.” Bernstein v. Burgess Battery Company, Del.Supr., 3 Storey 469, 171 A.2d 914 (1961). We also have held that §§ 9578 and 9579 are jurisdictional statutes governing the right of appeal from judgments entered in a Justice of the Peace Court; if they are not complied with, the Superior Court has no jurisdiction to entertain the appeal. Ademski v. Ruth, Del.Supr., 229 A.2d 837 (1967).

It should be noted, preliminarily, that the plaintiff in the original judgment was not named as a party in Superior Court and is not a party to this appeal, notwithstanding its obvious interest. The effect of its absence, however, has not been briefed or argued by counsel, and we have deemed it advisable to overlook that question and to pass upon the issues which have been argued because of their importance and because the questions would undoubtedly again be brought before us very promptly.

It also should be mentioned that we express no opinion as to whether or not these relators are in fact paupers; we will assume, as did the Superior Court, that they are unable to furnish surety because of poverty.

Some of the cases relied upon by appellants are instances in which the parties seeking relief were financially unable to pay, or to furnish bonds with surety for the payment of, costs or transcripts. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); O’Connor v. Matzdorff, 76 Wash.2d 589, 458 P.2d 154 (1969). They hold that a person cannot be barred from filing an appeal simply’ because of his inability to pay or provide bond for those expenses. In those instances, any loss due to the lack of a bond would fall upon the Government or the State. Those cases are not in point because these appellants admit that they are able to pay the costs.

Finally, it should be noted that we are not presently concerned with a refusal to permit a person to institute or defend an original action. These appellants had the benefit of a trial in a Court of original jurisdiction; we are presently concerned solely with the right to appeal from the judgment.

Delaware has no statute comparable to the Federal Act, 28 U.S.C. § 1915, which authorizes the institution by paupers of an original action or an appeal, or the defense thereof, without prepayment of fees or costs or security therefor, if a Judge finds that the suit or the appeal is not frivolous, and that the allegation of proverty is true. Our attention has not been called to any statute of any jurisdiction which permits the waiving of a bond required to be given for the protection of the other party. Moreover, we have found only one case in our sister states which has permitted waiyer of this kind of bond. We refer to Harrington v. Harrington, MeSupr., 269 A.2d 310 (1970), which is actually a case in which a pauper would have had no right to defend the original suit unless the bond were waived. The only truly pertinent decision which has come to our attention holds to the contrary. This is Alexander et al. v. Hamilton et al. (Ill.) (1970). The actions there were brought to recover the possession of realty from defaulting purchasers. The plaintiffs prevailed in the trial Court and the purchasers sought to appeal without providing statutory bonds for deprivation of the possession of the property while the litigation was going on. The Court held that the statutory requirement is jurisdictional and, in its absence, the appellate Court had no authority to entertain the appeals. It further held that the statute was not violative of any constitutional right of the defaulting purchasers.

The appellants contend that the Justice of the Peace has inherent power to waive the security required by § 9578. For purposes of the present case, we will assume without deciding that, if any Court of the State is permitted to waive the security, a Justice of the Peace may do so. The question we pass upon is not the identity of the Judge who may waive security, but rather whether any Judge may do so.

Appellant’s next contention is that the statute arbitrarily discriminates against defendants vis-a-vis plaintiffs in the Justice of the Peace Courts. We cannot follow this argument. The bond is required of any appellant against whom a money judgment has been rendered in that Court. The only appellant excused from providing that bond is a losing plaintiff against whom no counterclaim was filed. Since the purpose of the bond is to guarantee payment of the judgment if it be affirmed, there is obviously no occasion to require the furnishing of such a bond by a losing plaintiff against whom no money judgment was rendered. Such a plaintiff must, before filing an appeal, pay the costs then accrued and deposit a proper amount with the Prothonotary from which the appellate costs may be paid. We see nothing discriminatory in this provision.

Appellants next contend that the statute discriminates against Justice of the Peace defendants vis-a-vis Superior Court defendants. It is true in this State that the loser in a Superior Court trial is not ordinarily required to post a bond in order to obtain a review by the Supreme Court. If he does not do so, however, the appeal does not stay the operation of the judgment; Blaustein v. Standard Oil Company, Del.Super., 4 Terry 238, 45 A.2d 533 (1945); to obtain a stay, a bond guaranteeing payment must be furnished. Art. 4 Del.Const. § 24, Del.C.Ann. The bond required by § 9578 does operate as a stay. Moreover, there is a difference in the nature of the appeals. Those from a Justice of the Peace are tried de novo in Superior Court on both the facts and the law as if there had never been a prior trial; appeals from the Superior Court are not retrials of the facts, but are limited to review of alleged errors of law. It is possible that the Legislature felt that a winning party in the original trial Court should not be subjected to the expense of an additional trial without assurance that the judgment will be paid if it is upheld. In a Justice of the Peace Court, there is no jury. Upon appeal to the Superior Court, however, either party may demand a full-fledged jury trial; Thus, a loser before a Justice of the Peace has an advantage over his counterpart in a Superior Court case, in that he has two chances to obtain a favorable decision on the evidence.

The Legislature may also have been motivated by a desire to prevent frivolous appeals since we have no statutory procedure whereby a Judge may summarily refuse to allow such appeals.

Whatever may have been the motivation for the present Act, we do not think that the differences in the requirements constitute a violation of the equal protection or due process clauses.

Appellants next contend that § 9578 is unconstitutional by discriminating on the basis of wealth. They cite Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), and certain other cases dealing with requirements for prepayment or security for payment of costs or payment for transcripts. As previously indicated, our problem has nothing to do with costs or transcripts. We are not asked merely to waive a right of the State to receive its costs; we are asked to waive a right of a litgant to be guaranteed payment of a debt, if he is obliged to relitigate the case in Superior Court. We prefer to follow the rule of Alexander v. Hamilton, supra, and to leave it to the Legislature to determine whether any change should be made in the conditions under which an appeal may be taken from the Justice of the Peace Courts.

Appellants next contend that, by the bond requirement, they are denied due process of law because they are deprived of the fundamental right to litigate. They cite several cases which, in our opinion, are not in point. Admittedly, they have had a trial in a Court which had jurisdiction of the subject matter. We find no ground for holding that they have been deprived of a right to trial.

The final contention is that § 9578 is unconstitutional in that it “sets out a vague and incomprehensible standard” for establishing the amount of bond to be required. The figure set in this case is the minimum amount permitted by the statute— the amount of the judgment plus costs. It is true that the statute vests certain discretion in the Justice. The existence of that discretion does not render the Act so vague and incomprehensible as to bring it within the category insisted upon by appellants. To require security in a grossly excessive amount would be an abuse of discretion which the Superior Court could correct. Tinley v. Frederick, Del.Super., 1 Terry 412, 11 A.2d 329 (1940). We find this argument unpersuasive.

Affirmed.