Title 10, Courts and Judicial Procedure

§ 5031. Execution attachment. The plaintiff in any judgment in a court of record, or any person for such plaintiff lawfully authorized, may cause an attachment, as well as any other execution, to be issued thereon, containing an order for the summoning of garnishees, to be procee…

§ 5032. Answer by garnishee. The answer of a garnishee in any execution attachment, at the option of the plaintiff therein, may be taken by affidavit before any person legally authorized to administer oaths. When so taken and filed with the writ of attachment it shall be docketed…

§ 5041. Fieri facias; time of return. Every fieri facias shall be actually returned by the sheriff to whom it was delivered before the rising of the court, to which it is returnable, on the second day after the return day mentioned in the writ, with the sheriff’s certificate of w…

§ 5042. Inventory of unsold goods and chattels. Where the levy, or return, by virtue of a fieri facias has been of goods and chattels unsold at the return day, the sheriff shall annex to the writ an inventory of each article of such goods and chattels.Code 1852, § 2474; Code 1915…

§ 5043. Specification of lands seized or levied upon. If there has been a levy, or seizure, of lands, the sheriff’s return shall specify the principal improvements thereon; if any, as well as the known, or computed, quantity and situation thereof.Code 1852, § 2475; Code 1915, § 4…

§ 5044. Specification of prior executions. (a) Where the levy, or seizure, is returned as made subject to prior execution, the sheriff or other officer shall, in the officer’s endorsed, or annexed return, set forth as well the names of the plaintiffs in such prior executions as h…

§ 5045. Sheriff’s neglect in making return [Repealed].Code 1852, § 2477; Code 1915, § 4394; Code 1935, § 4852; 10 Del. C. 1953, § 5045; 70 Del. Laws, c. 186, § 1; repealed by 82 Del. Laws, c. 204, § 4, effective Aug. 20, 2019.;

§ 5051. Issuance of writ. (a) No writ of capias ad satisfaciendum shall be issued upon any judgment in a civil action against any person in this State, until a writ of fieri facias on the judgment has issued, and it appears from the return of such fieri facias, that the defendant…

§ 5052. Plaintiff’s affidavit of fraud; exceptions from requirement. (a) No writ of capias ad satisfaciendum shall be issued out of any court of this State upon a judgment in a civil action, against any person in this State, nor shall any such person be imprisoned for the nonperf…

§ 5053. Motion denying fraud; disposition. The court in which the affidavit referred to in § 5052 of this title is filed shall, upon motion of the person arrested, and reasonable notice in writing to the party in whose favor the process issued, or such party’s attorney, investiga…

§ 5061. Occasion for suing out writ; parties and notice [For application of this section, see 82 Del. Laws, c. 30, § 3]. (a) Subject to the provisions of §§ 5062A, 5062B, 5062C and 5062D of this title, upon breach of the condition of a mortgage of real estate by nonpayment of the…

§ 5062. Land divided by county line; venue of action. Whenever the dividing line between any 2 counties of this State runs through a tract of land conveyed in mortgage, a writ of scire facias may be sued out in either county in which any part of such tract is situated, directed t…

§ 5062A. Loss mitigation affidavit required. (a) In connection with any mortgage foreclosure action brought under § 5061 of this title with respect to an owner-occupied 1- to 4-family primary residential property, unless the mortgage is held by the seller of the subject property …

§ 5062B. Required notices. (a) (1) Except as provided in paragraph (a)(2) of this section, with respect to an owner-occupied 1- to 4-family primary residential property, a mortgage foreclosure action may not be filed until 45 days after a notice of intent to foreclose is sent in …

§ 5062C. Residential Mortgage Foreclosure Mediation Program. (a) An Automatic Residential Mortgage Foreclosure Mediation Program is established. (b) This section shall apply to mortgage foreclosure actions under § 5061 of this title with respect to owner-occupied 1- to 4-family p…

§ 5062D. Complaints and answers. (a) A complaint to foreclose a mortgage in an action subject to this chapter shall contain a statement as to whether the mortgage foreclosure action is subject to the Automatic Residential Mortgage Foreclosure Mediation Program and, where it is no…

§ 5063. Judgment upon default. If the defendant fails to appear at the return day of the scire facias, definitive judgment therein, as well as all other judgments to be given upon such scire facias, shall be entered that the plaintiff have execution by levari facias directed to t…

§ 5064. Award of levari facias when county line divides land. The writ of levari facias awarded upon any judgment for the sale of any such tract, as mentioned in § 5062 of this title, shall be directed to the sheriff of the county wherein the judgment was given. The sheriff shall…

§ 5065. Procedure after award of levari facias. Under a levari facias, awarded as described in this subchapter, the mortgaged premises shall be taken in execution, and after notice given in the same manner as in other cases of the sale of lands upon execution process, shall be ex…

§ 5066. Title of purchaser. The person to whom any lands and tenements shall be sold, or delivered, under § 5065 of this title, and such person’s heirs and assigns, shall hold the same, with their appurtenances, for such estate, or estates, as they were sold, or delivered for, di…

§ 5067. Disposition of surplus from sale proceeds. Any surplus of the proceeds of sale of mortgaged premises, after satisfying the principal debt in the mortgage, with interest and costs, shall be rendered to the owner of the premises at the time of sale. Until the surplus is so …

§ 5071. Issuance for execution on judgments and recognizances; parties. A writ of scire facias may be sued upon a judgment in a personal, or mixed action, as well as upon a judgment in a real action, as also upon all recognizances, to obtain execution of such judgment, or recogni…

§ 5072. Execution on judgments in civil actions. (a) An execution may be issued upon a judgment in a civil action at any time within 5 years from the time when such judgment was entered or rendered, or from the time when such judgment became due; or to collect any instalment of a…

§ 5073. Execution on judgments of the Court of Common Pleas or justices of the peace. An execution may be issued upon a judgment recovered before the Court of Common Pleas or a justice of the peace, and of which a transcript has been filed and entered in the Superior Court, or on…

§ 5081. 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 sheriff or other proper officer to be executed. An execution shall, from the time it is so delivered, bind all the goods and c…

§ 5082. 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…

§ 5083. Endorsing of date on writ. The prothonotary, issuing an execution, shall endorse thereon the date of its issue.Code 1852, § 2495; Code 1915, § 4412; Code 1935, § 4870; 10 Del. C. 1953, § 5083;

§ 5084. Duty of sheriff upon receipt of execution. The sheriff, 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 the order in which they are received. …

§ 5085. Applicability to executions by the Court of Common Pleas or justices of the peace. The provisions of this subchapter shall not apply to executions issued by the Court of Common Pleas or justices of the peace.Code 1852, § 2497; Code 1915, § 4414; Code 1935, § 4872; 10 Del.…

§ 5091. Execution on judgment for penalty. When an execution is issued upon a judgment for a penalty, the officer issuing it shall endorse thereon the real debt and the time from which interest is to be calculated.Code 1852, § 2498; Code 1915, § 4415; Code 1935, § 4873; 10 Del. C…

§ 5092. Death or escape of party arrested or imprisoned. If a person arrested, or imprisoned, by virtue of an execution, dies in execution, or escape, in either case the arrest, or imprisonment, shall be no satisfaction of the judgment, on which the execution is issued; and the e…

§ 5093. Liability of officer for escape; action against officer. If a person arrested, or imprisoned, by virtue of an execution, be suffered to escape, the sheriff, constable, or other officer having the custody of such person at the time of the person’s escape, shall be answerab…

§ 5094. Restitution on reversal of judgment after sale of real estate. If, after the sale of real estate upon execution process, the judgment upon which such writ is awarded shall be reversed for error, the real estate, so sold, shall not be restored, nor any part thereof, nor sh…

§ 5095. Mistaken identity of judgment debtor. Where a judgment is entered upon the wrong person by any court by reason of mistaken identity, that person shall at any time after the entry be permitted to petition the court that entered the judgment to challenge the validity of the…

§ 5101. Defendant or prevailing party in law actions. In a court of law, whether of original jurisdiction or of error, upon a voluntary or involuntary discontinuance or dismissal of the action, there shall be judgment for costs for the defendant. Generally a party for whom final …

§ 5102. Civil actions where defendant resides in another county. Wherever suit is brought in any civil action, excepting action where the venue is by law local, against any citizen of this State, in any other county than that wherein such citizens resides at the time of the incep…

§ 5103. Writs of prohibition or mandamus. In all cases of writs of prohibition or of writs of mandamus, the costs of each case shall be taxed by the court having jurisdiction of the cause, as it deems equitable and just.21 Del. Laws, c. 306; Code 1915, § 4446; Code 1935, § 4904; …

§ 5104. Actions in name of State. If final judgment is given for the defendant in a civil action, which is in the name of the State for the use of any person or corporation, judgment for costs shall be given against such person or corporation.Code 1852, § 2526; Code 1915, § 4447;…

§ 5105. Cases not specially provided for. Concerning costs on petitions, motions, rules and interlocutory matters not specially provided for, the court shall make such order in each case as it deems proper.Code 1852, § 2527; Code 1915, § 4448; Code 1935, § 4906; 10 Del. C. 1953, …

§ 5106. Actions in Court of Chancery. The Court of Chancery shall make such order concerning costs in every case as is agreeable to equity.Code 1852, § 2528; Code 1915, § 4449; Code 1935, § 4907; 10 Del. C. 1953, § 5106;

§ 5107. Affirmance of judgment by Supreme Court. Upon affirmance of a judgment in the Supreme Court, the costs of the defendant in error or appellee shall be added, by way of increase, to his or her costs in the first judgment, and be a part of the judgment. The amount may be sta…

§ 5108. Proceedings out of court. In any proceeding before a judge, the Chancellor, or Vice-Chancellor, out of court, there may be allowed for the service of process or the attendance of witnesses a reasonable fee, not exceeding what is allowable for like service or attendance in…

§ 5109. Cases within jurisdiction of justice of the peace brought in Superior Court. If any person brings a suit in the Superior Court upon a cause of action cognizable before a justice of the peace under § 9301 of this title and recovers not more than $50, besides costs, such pe…

§ 5110. Appeals from justice of the peace. (a) Upon an appeal from a justice of the peace, the party recovering judgment on the appeal, shall, as a part of the judgment, recover such party’s costs, as well as those before the justice as those upon the appeal, subject to the provi…

§ 5111. Certiorari to justice of the peace. If upon a certiorari, a judgment, given by a justice, is reversed, the plaintiff in the certiorari shall recover his or her costs. If such judgment is affirmed, costs shall be awarded to the defendant in the certiorari, except where the…

§ 5112. Bill of costs, time for entry upon docket. Within 20 days after the rendering of judgment or other determination of any cause or action in the Supreme Court, Superior Court, or Court of Chancery, the clerk, prothonotary, or register of the court shall enter upon the docke…