Title 10, Courts and Judicial Procedure

§ 9535. Form of distress warrant. The distress warrant to be used for levy on a referee’s goods and chattels shall be in the following form: “ County, ss. The State of Delaware, To any constable, greeting: Whereas, C. D. of has been adjudged by E. F., one of our justices of the p…

§ 9536. Setoff or counterclaim. (a) In every action before a justice of the peace, within the justice’s jurisdiction, the defendant, if the defendant has against the plaintiff any account, demand, or cause of action, cognizable before a justice of the peace, shall bring it forwar…

§ 9537. Failure of defendant to appear; adjournment or judgment by default. (a) After verification of the return of service, if a defendant, being duly summoned, fails to appear by written motion or pleading at or before the date provided for in the summons or at any time to whic…

§ 9538. Application to vacate default judgment. (a) A defendant may, within 15 days after the day of giving a judgment by default, apply to the court to vacate the judgment, and let the parties into a trial, provided however that a defendant may, within 30 days after a judgment b…

§ 9539. Failure of plaintiff to appear; adjournment or dismissal. If a plaintiff litigating a civil suit fails to appear at any proceeding scheduled by the Court, the Court shall either: enter a nonsuit judgment, which may be taken off in like manner as a judgment by default; dis…

§ 9540. Entry of judgment; endorsement on cause of action. Every justice of the peace, upon entering judgment upon any cause of action arising from any promissory note, bank check or due bill, or other evidences of indebtedness under the hand of the debtor, shall endorse on such …

§ 9541. Costs. (a) Whichever party recovers judgment shall recover that party’s costs of suit, to be allowed and collected by force of the judgment, as a part thereof. (b) If plaintiff, upon claiming a new trial, recovers no more than $5.00, exclusive of costs, the defendant shal…

§ 9542. Judgments against executor or administrator. (a) Every judgment against an executor, or administrator, as such, shall be a judgment of assets, and shall not charge the executor or administrator absolutely, but only in case the executor or administrator, at the time the ju…

§ 9543. Setting aside judgment on warrant of attorney. (a) If any defendant in a judgment on warrant of attorney, or attorney’s executors, or administrators, by affidavit filed with the justice, denies the obligation, or sets forth any just defense, a trial shall be granted, whic…

§ 9544. Six months stay of execution. (a) Upon every judgment given by the Court against a freeholder of the county, for a sum exceeding $5.00, besides costs, there shall, upon the application of the defendant within 5 days thereafter, be a stay of execution for 6 months, unless …

§ 9545. Nine months stay of execution; security. (a) If any defendant against whom a judgment is given for more than $5.00, besides costs, or any freeholder in relation to whom affidavit is made as in § 9544 of this title, gives, within 5 days after giving such judgment, or filin…

§ 9546. Transfer of judgment to Superior Court docket after stay of execution. (a) Whenever a defendant in any judgment described under § 9544 or § 9545 of this title has obtained a stay of execution under the provisions of either of such sections, the plaintiff or plaintiffs in …

§ 9547. Execution process. (a) Process of execution may be issued by the Justice of the Peace Court rendering a judgment, or by any other Justice of the Peace Court, with which the docket containing such judgment is deposited, or a duly certified transcript of the record of such …

§ 9548. Form of execution process. The form of execution process will be as prescribed by the Court and shall be issued in the manner provided by law.Code 1852, §§ 2110-2112, 2116; Code 1915, § 4023; 40 Del. Laws, c. 237, § 1; Code 1935, § 4509; 43 Del. Laws, c. 230, § 1; 10 Del.…

§ 9549. Garnishees; time for appearance; pleadings. (a) The day fixed for the garnishees’ appearance shall not be less than 5 days from the date, nor shall it be after the return day of the execution. (b) The garnishee summoned on any execution, or other attachment, shall be boun…

§ 9550. Proceeding by garnishee charging collusion. (a) Any person summoned to answer under an execution attachment as a garnishee of another, to whom such person is indebted in a sum exceeding the amount cognizable before a justice of the peace, or any creditor of such garnishee…

§ 9551. Appeal from proceeding by garnishee. (a) In any proceeding under § 9550 of this title, either party may have an appeal, as in other cases. (b) Any creditor of the garnishee, in case of judgment against the latter, may cause an appeal to be entered and carried on in the na…

§ 9552. Time of binding of goods and chattels by execution; duration of lien. An execution shall not bind goods and chattels until it is delivered to the constable or other officer to be executed. An execution shall, from the time it is so delivered, bind all the goods and chatte…

§ 9553. Levy; inventory. (a) The goods and chattels seized by virtue of an execution issued by a Justice of the Peace Court shall be inventoried by the officer levying the same. (b) The property which any debtor is entitled to have set apart under any exemption law of the State s…

§ 9554. Sale of goods levied upon; advertisement. (a) The goods and chattels taken on execution issued by a Justice of the Peace Court shall not be sold until they are advertised for at least 10 days, in at least 5 of the most public places in the neighborhood, by advertisements …

§ 9555. Priority of liens. If several executions against the same defendant are delivered on the same day, the first delivered shall have priority. If several executions against the same defendant are delivered together, they shall have priority according to their respective numb…

§ 9556. Duty of constable or sheriff upon receipt of execution; return of execution. (a) A constable, or other officer, receiving an execution, shall, in a docket, set down the date of receiving it; and when several executions are delivered on the same day, the docket shall show …

§ 9557. Venditioni exponas; issuance; requirements; effect. (a) If there has been a levy made, but no sale, then an execution of venditioni exponas shall be issued at the request of any party entitled to the judgment. (b) A copy of the inventory shall accompany the return. (c) Th…

§ 9558. Form of venditioni exponas. The venditioni exponas shall be in the following form: “ County, ss. The State of Delaware. To any constable, greeting: We command you that after giving due notice, you sell, at public vendue, the goods and chattels specified in the schedule he…

§ 9559. Failure to return and defective return of execution [Repealed].Code 1852, § 2132; Code 1915, § 4030; Code 1935, § 4516; 10 Del. C. 1953, § 9566; 70 Del. Laws, c. 186, § 1; repealed by 82 Del. Laws, c. 204, § 9, effective Aug. 20, 2019.;

§ 9560. Failure to pay over proceeds from execution. If any sheriff, or constable, levies or receives any sum of money by virtue of an execution issued by a justice of the peace, and does not pay such proceeds on demand to the person entitled to receive them, he or she shall pay …

§ 9561. Failure on return to produce receipt of proceeds. (a) If any constable, to whom an execution is delivered, does not, at or before the time it is returnable, produce the receipt of the party entitled to the benefit thereof, for the amount levied thereon, or makes an insuff…

§ 9562. Necessity of judgment and execution docket. There shall be a judgment and execution docket for each Justice of the Peace Court, the size, type and mode of said dockets to be as prescribed by the Chief Magistrate.12 Del. Laws, c. 91; Code 1915, § 4028; Code 1935, § 4514; 1…

§ 9563. Judgment docket. Every justice of the peace shall make a fair entry, in a judgment docket, of every action commenced before him or her, therein setting down the names of the parties, the cause of action, the sum demanded, the day of issuing process and when it is returnab…

§ 9564. Execution docket. Every justice of the peace shall make a fair entry of every execution issued by such justice of the peace, setting down the names of the parties, the day of issuing, and the day when it is returnable, the debt and the costs, how directed, and to whom del…

§ 9565. Indexing of dockets. The indexing of the judgment and execution dockets shall be as prescribed by the Chief Magistrate.Code 1852, § 2126; Code 1915, § 4028; Code 1935, § 4514; 10 Del. C. 1953, § 9572; 65 Del. Laws, c. 173, § 3;

§ 9566. Entry of judgment satisfaction by justice. Whenever it appears by the return to, or the proceedings upon, any execution, that a judgment is satisfied, the justice, who has the judgment docket, shall make an entry of the satisfaction thereon, if such return or proceedings …

§ 9567. Entry of judgment satisfaction by creditor or execution officer. (a) The creditor in any judgment before a justice of the peace, receiving satisfaction thereof in any manner other than from an officer in pursuance of an execution, shall cause satisfaction of such judgment…

§ 9568. Filing of abstract of execution [Repealed]. Repealed by 70 Del. Laws, c. 232, § 12, effective July 14, 1995.

§ 9569. Transfer of judgment to Superior Court; lien on real estate. (a) Judgments entered into the judgment docket in the Justice of the Peace Courts shall not constitute a lien upon real estate, but the judgment creditor may file a duly certified transcript of the docket entrie…

§ 9570. Right to appeal. (a) A party against whom a judgment is given by a justice of the peace may appeal to the Court of Common Pleas if the judgment is given without a referee trial, and the amount exceeds $5.00, exclusive of costs. (b) A plaintiff or defendant, as the case ma…

§ 9571. Appeal in civil actions. (a) From any final order, ruling, decision or judgment of the Court in a civil action there shall be the right of appeal to the Court of Common Pleas of the State in the county in which said order, ruling, decision or judgment was rendered. (b) Th…

§ 9572. Proceedings on appeal. (a) The appellant shall have the appellant’s appeal entered in the Court of Common Pleas of the county where the judgment was given within the time and in the manner provided by the rules of that Court, and the Clerk of Court shall docket the action…

§ 9573. Execution upon striking of appeal. (a) Whenever an appeal is struck off, the justice shall, upon application of the creditor, issue execution upon the judgment with the costs on the appeal added, against both defendant and sureties, as is provided in §§ 9547 and 9548 of t…

§ 9574. Abatement and dismissal. (a) If an appellant does not duly enter the appellant’s appeal in the Court of Common Pleas, it shall be abated; and on production of the prothonotary’s certificate, under seal, made after the next term of the Court following the appeal, showing t…

§ 9575. Abatement and dismissal [Transferred]. Transferred to § 9574 of this title.

§ 9576. Remedy against deceased surety; assignment of creditor’s remedies to surety. (a) If a surety liable to execution dies before execution is issued, the creditor may proceed by scire facias upon such judgment and suretyship against the executors and administrators of such su…

§ 9577. Forms. The form of a scire facias shall be as follows: AGAINST EXECUTORS OR ADMINISTRATORS “ County, ss. The State of Delaware, To any constable, greeting: We command you that you make known to A. B., administrator (or executor) of C. D., deceased, to appear before E. F.,…

§ 9578. Survival of actions; parties. (a) The death of a party shall not abate any action pending before a justice, or any appeal, or right of appeal, or any certiorari. If there are several plaintiffs, or defendants, and one dies, the action, or proceeding, may be prosecuted for…

§ 9579. Issuance, service and return of writ; proceedings. A scire facias may be issued by the justice rendering a judgment, or by any other justice, who has the record of such judgment, or a transcript thereof before such justice. It shall be issued, served and returned in the s…

§ 9580. Endorsement and docketing; assignment of judgment. (a) The justice of the peace shall endorse on the scire facias the name of the party who has it issued, and his or her representative character, if he or she so sues, and the name of the person he or she represents, wheth…