Evening journal., 1918-05-15
COURT DECIDES
TWO LAW POINTS

Judges Rice and iIeisel this morning
! handed down opinions in two cases
argued before them on Monday during
argument day, which are Of exceeding
interest TO lawyers
The first, delivered by Judge Rice
was on an appeal from the decision Of
a Justice Of the peace on a iudgment
obtained by the Wilmington Gas Com
pany against one Harry Omnest.
Omnest's appeal was on the grounl shat
the justice had no jurisdiction.
In dismissing the appeal Judge
| Rices opinion said:
The defendant moved 10 dismiss the
| appeal for the reason that il does not
appear from the transcript filed In this
/ court, that either the plaintin or dc
fendant was Of Wilmington hundred
OF OF the hundred Immediately adion-
ing, as required by statute.
section 4005, Rev. Code 1915, provides
in part that no action shall be brought
or maintained before any justice Of
the peace appointed for OF residing in
any hundred in New Castle county
against any person who does not re-
side within the same hundred OF the
said Justice OF the peace, or within
the hundred Immediately adjoining.
Every judgment in any action
tnat may be given or entered by any
justice Of the peace appointed for or
residing in any hundred OF the county
aforesaid, against any person not living
or residing in the hundred Of the said
justice Of the peace, OF In a hundred
Immediately adjoining, except for Grim
inal offences, shall be void.
provided that nothing in this aec-
tion shall debar any bona fde resident
OF any hundred Of said county who
shall have desided there for sixty
DAYS from bringing action before any
Justice Of the peace who may reside in
said hundred, against any person resi6-
ing in any hundred in the county afore-
said for any action authorized by law.
"The residence OF the parties is a
iurisdictonal fact in civil trials before
a Justice Of the peace in this county,
and under the provisions Of the statute,
subject TO the terms Of the proyiso
above set forth. il the justice enters
judgment against any person not liv-
ing in the hundred Of the justice, or in
! the hundred Immediately adjoining, the
, judgment is void.
: These facts necessary TO give the
Justice jurisdiction Of a case should
( appear on the record OF the justice, and
, on the transcript Of the record on ap-
: peal The failure OF the transcript In
this case TO show either the residence
OF the plaintiff or the defendant TO be
in the hundred Of the justice or in a
J hundred Immediately adjoining, IS
, fatal"
The opinion handed down by Judge
Y Heisel was on a point OF law involved
. in the case Of Hinderer VS.. Jones, and
= says:
6 THE defendant below pleaded non
y assumpsit, payment former recovery
r. set-off and statute Of limitations.
r "On March 4, the plaintiff below de-
clined to reply to any OF said pleas
y until each Of such pleas Is drawn
out On May a counsel for defendant
e below Withdrew all his pleas, accept
!, ing the plea OF non-assumpsit anc
t moved for Judgment against the plain
+ tiff below for his failure to ille a replF
cation
1T is eontended by counsel for defen-
dant below that the plea OF non
q assumpsit is the general issue, that d
!, would be Of no assistance TO the plain
/, til below 10 have IL drawn out, anc
: that therefore the plaintiff, having
! failed to fle a replication 10 that plea
! as required by the rule, the defendan
n below is entitled to judgment for wan
y Of such replication TO that plea w
think Judgment should so be awarded
"This question is treated fully il
I Woolley on Del Prac. 4s0 and 4si w
| quote one paragraph. When the plain
tiff is ruled to nle his replication L
] the defendants pleas, even though the,
:. are all memoranda, he cannot ignor
4 rthem. for their Judgment would b.
i, taken against him for want Of a repli
cation. but he should plead TO thos
+ which, for his information, need no
e be drawn out. and order the other
n drawn out before he pleads Let iudg
ment for want OF a plea be entered