but it is in fact the law of the land in many that be so then it must follow that the attachactions in rem. ment which exists because the action is in

We have stated substantially the plaintiffs' rem is lost when the action becomes an ordiargument as made in the case.

It is probably true, as plaintiffs aver, that never before has any one contended that there could be an appearance in a foreign attachment suit against an individual without entering special bail.

nary personal action, unless the lien is saved by a provision such as is found in our statute respecting foreign corporations. That statute has been cited in support of defendant's argument that the lien of the attachment would remain even if there is a general appearance. But it seems to the court that such an inference is unwarranted because the fact that the attachment is saved by the lan

tions, even though there is an appearance, indicates that it would not be saved, in case of appearance, by the act respecting individuals which contains no such language.

But in case of appearance without giving security, any judgment recovered by the plaintiff would be a general judgment, and for that reason also the lien of the attachment would be lost. It is hardly arguable that such a judgment, or an execution issued thereon, would be a special lien on the property seized under the attachment.

This fact does not prove that such an appearance cannot be made, but it is of much significance, and necessarily has some weight with the court. But conceding that the prac-guage of the act respecting foreign corporatice has been long and uniform, the defendant argues that the question raised in this case has never been raised before, and that, therefore, it is a new question before the court. Moreover, the defendant says: A case like the present one has never been presented to the court before. The only distinguishing feature, however, is that the amount of bail required is so large that it is impossible for the defendant to furnish it. We cannot regard that fact as sufficient to distinguish this case from others, because in every foreign attachment suit the ability of the defendant The defendant seeks to meet this objection to furnish the security required to discharge by citing two foreign attachment cases dethe attachment depends very largely upon cided by this court in which, upon motion, the his financial condition. It might be as diffi-judgment obtained by the plaintiff was opencult and impossible for one person to give a small bond as for another to furnish a large one. The large amount of bail required in this case cannot, therefore, take it out of the general rule.

ed and the defendant let into a trial. But it is to be noted that in those cases judgment had been recovered, and permitting the defendant thereafter to disprove plaintiffs' claim if he could, did not in anywise affect [1] The court are clearly of the opinion the lien of the judgment recovered in case that in a foreign attachment suit against an the defendant failed in his defense. The lien individual, there can be no appearance with- on the property attached would, in that event, out entering special bail; indeed, the enter- continue. In the two cases referred to the ing of bail constitutes defendant's appear-court evidently treated the judgment recoverDefendant has produced no case in ed as a judgment by default, and embraced conflict with this conclusion; and while his within the provisions of another statute of reasoning based upon the language of the the state which permits the court to open a statute and the rights of defendants, is judgment given by default in a summons strong, it is not convincing. case, and let the defendant into a trial, provided it is shown that he has a legal defense, and had no knowledge of the suit before the judgment was recovered. Revised Code, §

ance.

This case involves a construction of a statute of our own state, and cases from other jurisdictions cannot be of much assistance to the court in any event.

4089.

The defendant argues that the statute has The court, in those two cases, acted either a twofold aspect, viz.: (1) To compel an ap-upon the belief that a judgment recovered in pearance; and (2) to give the plaintiff a lien on the property attached for the payment of his claim.

a foreign attachment suit was a judgment by default within the meaning of said act, or proceeded in analogy thereto, and with the While we think the purpose of the statute conviction that the court had the power, in was to accomplish both of those things, we the interest of fairness and justice, to afford do not think the two things are separate and the defendant an opportunity at some stage independent. The one must be dependent of the case to make a defense to the action, on the other, for otherwise entering an ap-if he previously had no knowledge of the propearance would destroy the lien and advan- ceeding against him. And the court was also tage of the attachment. Surely the Legisla-influenced, no doubt, by the thought, that ture did not contemplate such a result.

The defendant insists that an appearance would not necessarily discharge the attachment, but we are wholly unable to agree to that proposition. He admits that an appearance by the defendant would change the action from one in rem to one in personam. If

permitting the defendant to make a defense would not prejudice or injure the plaintiff if the lien of his judgment was not affected.

Without expressing any opinion upon the correctness of the court's action in the cases referred to, or indicating what the court might do, after judgment, in a foreign attach

ment case where it clearly appears that it to another act, Revised Code, section 1986, was not possible for the defendant to furnish which provides that: the bail required, we say, that the action

"For all purposes of title, action, attachment, of the court permitting the defendant in a garnishment, * the situs of the ownerforeign attachment case to make a defense ship of the capital stock of all corporations exafter judgment has no bearing on the ques-isting under the laws of this state shall be regarded as in this state." tion whether he can appear before judgment without entering special bail.

In view of these two statutes it is not necessary that the court should decide what is meant by the words of section 4120, "doing business in this state;" and besides we fail to see that the statute making corporations doing business in this state liable to attach

Another objection made to an appearance in this case is that a trial would necessarily cause a continuance of the case and prevent the plaintiffs from recovering any judgment under the statute. The language of the statute requires that judgment shall be given at the second term if special bail is not entered.ment can have any application to this case. We do not decide that the court would not have the power to enter judgment after the second term, if for any reason the case had to be continued, but we do say that under the peremptory terms of the statute it is very doubtful, and such has been the general opinion of the bar for a long period of time.

The defendant claims that inasmuch as the plaintiffs filed a declaration in the case and ruled pleas, he had a right to appear and plead to such declaration.

that if there can be no appearance under the [3] In respect to defendant's contention, statute without entering special bail, the statute is in conflict with the Fourteenth Amendment of the federal Constitution, in that it deprives the defendant of his property without due process of law, we say, that in our opinion the statute is not in conflict with said amendment. It does not deprive a defendant of the right and opportunity to make a defense to an action brought thereunder, but merely prescribes a condition to the exercise of such right. He may appear and make his defense provided he gives security to the amount of the property attached. The security required simply takes the place of the property the plaintiff, by his diligence, has already seized, and there is nothing unreasonable in the requirement. It is the same

It was stated by counsel for the plaintiff that the declaration was filed out of abundant caution in view of the recent statute and new rules in relation to pleading. Whatever induced the plaintiff to file the declaration, it is certain that the fact it was filed cannot change the meaning and effect of the statute. [2] The defendant contends that, even if thing that the defendant must do in other his appearance and pleas should be strick-actions in rem in order to make a defense. It en off:

"The court would be without jurisdiction because it appears from the sworn statement of fact filed in the case that the Wooten Land & Fuel Company, the garnishee, while a corporation of the state of Delaware, is not now doing, and never has done, business in this state.'

It is true that section 4120 of the Revised Code provides that:

"All corporations doing business in this state, except banks," etc., are subject to the operations of the attachment laws, * as provided in the case of individuals, * * and said corporations shall be liable to be summoned as garnishee," etc.

is the law of the land in respect to such actions, and does not deprive the defendant of any right or property without due process of law. The requirement is not arbitrary or unreasonable, and is not different in principle nor greater than the defendant must meet in a distress for rent, other attachment, or in a capias ad respondendum.

The plaintiffs have failed, we think, to produce any case that is at all in conflict with our conclusion upon this point.

[4] We are also of the opinion that the statute is not unconstitutional because, as 'defendant claims, it makes an improper or illegal classification of persons to be affected by it. Little stress, or reliance apparently, was placed upon this point at the argument, and we think it unnecessary to discuss it. The decision of the court, upon the whole "The shares of any person in any incorporat-matter, and after carefully considering the ed company, with all the rights thereto belong-able and interesting argument of counsel, is ing, may be attached for debt," etc.

But the corporation was not attached in this case, neither was it summoned as garnishee. The stock of the defendant in the corporation was attached under section 2009 of the Revised Code, which provides that:

Under this statute the corporation is not attached or summoned as garnishee, but an officer of the company gives to the sheriff a certificate of the number of shares held by the debtor in such company. This is an old law, very general in character, and not at all inconsistent with, or limited in its operation by, section 4120, a much later act.

that the statute in question is constitutional, and that in an action brought thereunder the defendant can appear only by entering special bail. This conclusion is supported by the great weight of authority. Indeed, we have seen no case to the contrary.

We have covered at sufficient length, we think, the points involved in this case. A discussion of all the questions raised, com

made by counsel, would unduly prolong this, Argument for Defendant in Support of Petiopinion. tion to Open Judgment for Want of Appearance.

It is ordered that the foregoing opinion be and it is certified to the superior court for New Castle county.

(Signed by the Judges.)

Whereupon the Superior Court, after re citing the then condition of the record, made an order as follows:

"It is ordered by the court that said attempted appearance of Ward, Gray & Neary, Esquires, for said defendant and the said docket entries made by the prothonotary as aforesaid be stricken out, and that said paper writings containing pretended pleas and reply to plaintiffs' motion, marked Filed' by the prothonotary as aforesaid, be stricken from the files of this court; and

"It is further ordered that judgment for want of appearance, collectible only from the property attached, be entered in favor of the said plaintiffs and against the said defendant, and further that the amount of said judgment be ascertained by inquisition at bar."

The amount was so ascertained at the succeeding May term. But before the amount of the judgment had been ascertained, security as required by the statute not having been given, counsel for the defendant presented a petition assigning reasons for opening the above judgment, being substantially the same assigned for opening final judgment hereinafter shown, and moved for a rule upon the plaintiffs to show cause why the judgment should not be opened and the defendant be permitted to appear and disprove or avoid the debt or claim of the plaintiffs. A rule was thereupon issued directed to the plaintiffs in the judgment, returnable on, etc. The time for return was subsequently enlarged to etc., and an order was made by the court directing the sheriff to serve the writ on the attorneys of record for the plaintiffs without prejudice as to the legality of service so

made.

The return indorsed on the rule was as follows:

"Made known personally to Saulsbury, Morris & Rodney, Attys. May 18, 1916," etc.

The judgment entered was not a final judgment but only a judgment by default, an interlocutory judgment as defined in Citizens' Loan Association v. Martin, 1 Marv. 213, 40 Atl. 1108.

The service of the rule upon the counsel for the plaintiffs is due service in this case. It may well be doubted whether any formal service was necessary. Notice to or knowledge of the attorney for the plaintiffs would seem to be all that ought to be required of any application in a pending cause.

In the two statutory provisions which contemplate the opening of judgments, sections 4089 and 4169, Rev. Code 1915, no form of notice is prescribed. These provisions apparently deal with essentially final judgments.

Rule 6 of the Superior Court seems to elevate notice upon counsel for matters in a pending cause as the regular and not the exceptional mode of service. 1 Woolley on Del. Pr., § 219.

Section 3730, Rev. Code 1915, confers upon the Superior Court power to make rules. Under such a power the court might, as it did in the present instance, prescribe the service of the rule upon the attorney of record of the nonresident parties plaintiff, represented by responsible counsel of record who is still engaged in prosecuting the cause which has not yet reached final judgment.

Courts have not generally found any real difficulty in directing service of rules or processes upon the attorney of record for the plaintiff, upon application to open judgments, even though such judgments may have been pro forma entered as final judgments, and they have exercised such power without any statutory authority, by virtue of their com mon law powers, and for the purpose of conserving the ends of justice, where the plaintiffs are nonresidents. Beach v. Beach, 6 Dak. 371, 43 N. W. 701; Pick v. Glickman, 54 Ill. App. 646; 30 Cent. Dig. § 749 title The attorneys for the plaintiffs petitioned 476, 82 N. W. 990; Merriam v. Gordon, 17 "Judgments"; Phelps v. Heaton, 79 Minn. the court for permission to appear specially Neb. 325, 22 N. W. 563, 565; Branch v. Walkfor the purpose of moving to quash and set aside the return of the sheriff on the ground, 92 N. C. 87; 30 Cent. Dig. § 749, title "Judgments"; Yorke v. Yorke, 3 N. D. 343, of illegal service. The prayer of the petition 55 N. W. 1095, 1097; Sturgiss v. Dart, 23 was granted. Motion was made to vacate said service, and also, without prejudice to the rights of the plaintiffs, that the petition Said sections 4089 and 4169, Rev. Code 1915, to open judgment be stricken from the files cover two cases under which proceedings of the court; that the rule be discharged in may be had to open judgments, which would that the matters set forth in the petition be final if they were left undisturbed. were not sufficient to warrant the opening Section 4089 prescribes particularly averof the judgment, and that the order direct-ments in the affidavit of application denying ing the issuance of the rule be vacated. notice, etc., and a just and legal defense.

Wash. 244, 62 Pac. 858, 861; Dane v. Daniel, 28 Wash. 155, 68 Pac. 446, 449.

The questions of law raised by the motions Section 4169 requires the averment of a were directed to be heard by the court in sufficient cause and imposes the giving of

interest and costs, which the plaintiff may | v. Dillon, 3 Del. Ch. 496, 509, 510; Townsend finally recover.

That the Superior Court has a much more extensive control over its judgments than is defined in either of the statutes cited is ap-ed from the general powers of a court of law, parent from an inspection of the Delaware are very clearly summarized in 1 Pomeroy's Reports. To illustrate with a few instances: Eq. Jur. § 67. Lofland v. McDaniel, 1 Pennewill, 416, 41 Atl. 882; Woodward, Baldwin & Co. v. Arlington Mills, 2 Pennewill, 188, 44 Atl. 620; Janvier v. Culbreth, 5 Pennewill, 505, 63

Courts of general jurisdiction have an inherent power, essential to such jurisdiction, to open or vacate judgments, and do not depend for such power upon a statute. A statute covering certain phases of the power has no operation to limit the powers of the court in this behalf. 1 Black on Judgments, § 297.edness. Taylor v. Rossiter, 6 Houst. 485; Numerous cases support the same doctrine. Kemp v. Cook, 18 Md. 130, 79 Am. Dec. 681, 694; Bradley v. Slater, 58 Neb. 554, 78 N. W. 1069; Donnelly v. McArdle, 14 App. Div. 217, 219, 220, 43 N. Y. Supp. 560; Kiefer V. Grand Trunk R. R. Co., 55 Hun, 604, 8 N. Y. Supp. 230; Ladd v. Stevenson, 112 N. Y. 325, 19 N. E. 842, 8 Am. St. Rep. 748.

menaced by the defense of the defendant | the practice under the common-law writ of against the debt claimed by the plaintiffs audita querela, the service on the rule must against him. In re Warthman, supra..

Opening a default judgment merely to let the defendant in to a defense does not destroy its lien; the lien continues for the statutory period. 1 Black on Judgments, 472.

The risk or danger to the plaintiffs, therefore, upon the granting of the motion to open this judgment, is substantially nothing. Balanced as against this secure position of the plaintiffs is the ruin of the defendant by the sacrifice sale of his property.

Here is an opportunity for the exercise of the indisputable equitable power of this court, so as to prevent the perpetration of an enormous injustice due to an archaic procedure sanctioned by our practice. Souerbry v. Fisher, 62 Ill. 135.

be actual and not substituted service, for it is not then a motion in the same suit, but is the institution of a new suit.

In the event that the court should be of the opinion that the filing of the petition and the issuance of a rule to show cause whether the judgment should not be opened was not the institution of a new suit and that the rule issued as part of the proceedings in the main cause, it is submitted that the paper writing purporting to be a petition should be stricken from the files of the court, the rule discharged and the order directing the issuance of the said rule be vacated in that the said defendant has not appeared in said cause by giving special bail as required by the statute.

v. Cooper, 2 Houst. 506.

The judgment entered in this proceeding It may be advanced as a general princi- was an interlocutory and not a final judgple, that without statutory authority to the ment. Freeman on Judgments, § 12; Black contrary an executor can neither sue nor be on Judgments, § 28; 23 Cyc. 765; Woolley sued qua executor beyond the sovereignty in on Del. Prác. §§ 392, 764; Cit. Loan Ass'n v. which he was appointed. 1 Williams on Ex-Martin, 1 Marv. 213, 40 Atl. 1108; Daniel ecutors, 429, and cases cited; Hopper v. Hopper, 125 N. Y. 400, 26 N. E. 457, 12 L. R. A. 237; Johnson v. Powers, 139 U. S. 156, 157, 158, 11 Sup. Ct. 525, 35 L. Ed. 112; Stacy v. Thrasher, 6. How. 44, 58, 12 L. Ed. 337; Noonan v. Bradley, 9 Wall. 394, 19 L. Ed. 757; Reynolds v. Stockton, 140 U. S. 254, 272, 11 Sup. Ct. 773, 35 L. Ed. 464.

Section 3404, Rev. Code 1915, permits a foreign executor, upon complying with certain conditions prescribed, to bring suits in our courts. The statute requires that a copy of the letters of appointment certified under

the hand and seal of the court or officer making the appointment, shall be produced in our court. This the plaintiff never did.

An action or proceeding is pending from the time of its commencement until the rendition of final judgment therein. Rice v. McCaulley, 7 Houst. 226, 31 Atl. 240; 25 Cyc. 1469; Tichenor v. Collins, 45 N. J. Law, 123, 124; Holland v. Fox, 3 E. & B. 977, 985; 77 E. C. L. 977, 118 Reprint 1407.

The court has said in this case:

"The court are clearly of the opinion that in a foreign attachment suit against an individual there can be no appearance without entering special bail; indeed the entering of bail constitutes defendant's appearance."

See also 1 Sellon's Prac. 91.

It appearing that the defendant has not entered special bail, that is, has not ap

Argument for Plaintiffs Against Petition to peared, it follows that he cannot be heard

Open Judgment for Want of
Appearance.

Judgments have been opened or vacated for certain reasons or purposes, as shown by the decisions in this state; yet the powers of the court have never been clearly limited and defined by any decision on this point; nor does it appear whether the power is limited and confined by analogy to the practice under the common law writs of audita querela and coram nobis and coram vobis.

The writ of audita querela must be served upon parties made defendant to it. 3 Enc. Pl. & Pr. 122.

in any manner in the main cause.

If the court shall be of the opinion that the petition of the defendant was attempted to be filed in the main proceeding and was not the institution of a new proceeding, then the motions of the plaintiffs should be granted.

The facts set forth in the petition for opening the judgment are not sufficient to authorize the opening of the same.

The judgment rendered in this proceeding is collectible only from the property attached. The rendering of the interlocutory judgment makes more firm and stable the attachment but does not enable the plain

It is a regular suit, with its usual inci-tiffs to obtain satisfaction out of any propdents, pleadings, issues of law and fact, trial, judgment and error. 3 Enc. Pl. & Pr., 113; Freeman on Judgments, § 95; Black on Judgments, § 299.

Like service was probably necessary on the scire facias issued upon the writ of coram nobis and coram vobis. 3 Enc. Pl. & Pr. 2. In the event that the practice of opening

erty other than that attached; from which it follows that the opening of the judgment to permit the defendant to appear and defend, substantially vacates the judgment without dissolving the attachment.

The petition does not disclose that the defendant is able now to enter special bail. If the interlocutory judgment were opened