Lawson v. Layton

Boyce, J.,

delivering the opinion of the court:

It appears by the record sent up in this case that Layton and Layton, Incorporated, a corporation created by and existing under the laws of the State of Delaware, is plaintiff and Daniel W. Lawson is defendant in the judgment below. A forthwith summons issued, and was returned, served personally, the return of service being verified. The defendant failing to appear, the justice after having heard the proofs and allegations of the plaintiff, rendered judgment against the defendant by default in favor of the plaintiff.

Under Section 2, Chapter 99, Revised Code, as amended (24 Del. Laws, c. 241), summons may be issued returnable forthwith, if the justice shall be satisfied by the oath of the plaintiff that there is danger of his losing the benefit of his process by delay. The affidavit made in this case is “that Landreth L. Layton personally appeared before William A. Warrington, a justice of the peace,” etc., “and made oath in due form, and deposeth and saith that the defendant is justly indebted to him in the sum of $196.04, and he has just cause to believe there is danger of losing the benefit of his process by delay.” While the affidavit is signed by Landreth L. Layton, treasurer for Layton and Layton, Incorporated, it was made by Landreth L. Layton, individually, in which he deposes that the defendant is indebted to him, not to the plaintiff corporation, and that he personally and not the plaintiff believes there is danger of losing the benefit of his process by delay.

By Chapter 241, Volume 24, Laws of Delaware, said Section 2, Chapter 99, Revised Code, is amended by adding after the word “plaintiff” and before the word “that” the following words: “or, if the plaintiff be a corporation, by the oath of any officer of said corporation.”

Without taking up the several, assignments of error, we will confine our consideration to the fourth, which is: “For that the plaintiff did not make oath that there was danger of its losing the benefit of its process by delay.” The provision of the statute, making the required oath of the plaintiff necessary in case of a summons returnable forthwith, is mandatory, before a judgment by default can be entered. When the action is by a corporation, it is necessary that the oath be made by some officer of the corporation. It is obvious that the affidavit filed in this case was not made by any officer of the plaintiff corporation for and on behalf of the corporation.

We therefore order that the judgment below be reversed.