concurring:
I concur in the result reached by the majority of the Court, but I am unable to concur with its reasoning, as I am unwilling to agree that the authorities relied upon by the majority of the Court have any direct application to the present case.
No question has been raised concerning the jurisdiction of the Justice of the Peace of the cause of action or over the parties, the regularity of the proceeding before him or of the docketing of the appeal in this Court at the instance of the defendant below. It appears to me that the only question to be determined by this Court is “whether or not the respondent either had notice of or was .charged with notice of the appeal,” and that in the consideration of this question the rules of the common law have no application.
The remedy or procedure by appeal is of civil-law origin, and was introduced therefrom into courts of equity and admiralty.
It was entirely unknown to the common law. Consequently, the remedy by appeal in actions at law and in equity is purely of constitutional or statutory origin, and exists only when given by some constitutional or statutory provisions. 4 C. J. S., Appeal and Error, § 18.
“* * * an appeal is not the commencement of a new suit, * * * but is a continuation of the original suit or action or a step or proceeding in the original cause.” 4 C. J. S., Id., § 20.
“The office of an appeal has been said to be to remove the entire cause, and to bring the case up on its merits, * * * When given its original scope it is in substance or effect a new trial, or the award thereof; * * *” 4 C. J. S., Id., § 21.
*463The right of appeal from judgments given by Justices of the Peace is regulated by Chapter 121 of the Revised Code of 1935.
Section 32 thereof (Rev. Code 1935, § 4521) gives the right of appeal in certain cases and it is not denied that under the authority of said Section the defendant below had a right of appeal from the judgment given by the Justice of the Peace.
Section 33 of said Chapter (Rev. Code 1935, § 4522) provides that
“Such appeal shall be allowed by the Justice at any time within fifteen days from the day of giving the judgment.”
Section 34 of said Chapter (Rev. Code 1935, § 4523) provides that
“It shall be the duty of the appellant to have the appeal entered in the Superior Court of the County where the judgment was given, on or before the first day of the term next after the appeal; and for this purpose, to deliver a duly certified transcript of all the docket entries in the case to the Prothonotary, who shall file the same, * * * and shall issue a summons to the sheriff, * * * for summoning the respondent to appear and answer the appeal. * * *
“When the appeal is entered, the Court shall have jurisdiction and take cognizance thereof, and the pleadings and proceedings thereafter shall be as in causes commenced in the said Court.”
From the above it is clearly apparant that an appeal from a judgment entered by Justices of the Peace is not the commencement of a new action. It is nothing more than a new trial of a cause in the Superior Court of a proceeding comimenced before a Justice of the Peace, in which a judgment has been entered by the Justice of the Peace. The cause is tried as if commenced in the Superior Court. There is no change in the cause of action, the relative postion of the parties, or in the burden of the proof. On appeal there is no presumption in favor of the prevailing party below.
It of course must be conceded that where such an *464appeal is taken the respondent should have notice thereof, and that where the manner of giving notice is provided by Statute the notice must be given in the manner so provided.
No specific provision is made by the Statutes of this State for the service of summons in appeal cases. If service is made upon the respondent in the manner provided by the Statute for the serving of original process for the commencemient of actions, such service would be a proper service for the purpose of giving notice to the respondent of the filing of the appeal. Where, however, such service is not made because of the non-residence of the respondent, or otherwise, the right of the defendant below to prosecute his appeal should not be defeated.
In Dubree v. Pusey, 5 Harr. 421, in considering an appeal from a judgment entered by a Justice of the Peace where the appellant had caused to be issued two citations and the Sheriff to each citation returned “non est inventus” this Court in holding two returns of “non est inventus” equivalent to a citation, said:
“The law secures the right of appeal to a defendant, which would be inoperative, unless there can be a mode of compelling the plaintiff to appear to the appeal.”
The rule applied in the Dubree Case was approved by this Court in the Sharpley’s Will Case, 5 W. W. Harr. (35 Del.) 76, 158 A. 709, in considering the effect of two returns of “non est inventus” to a citation in an appeal taken from the Register’s Court. There this Court said:
“The method of taking the appeal seems to be a casus omissus of the statute.
. “The Courts of this state, however, were at an early date confronted, in appellate proceedings, with the same question here involved.
“In Jeans v. Milford, 3 Harr. 48, and Dubree v. Pusey, 5 Harr. 421, the Superior Court held that two returns of ‘non est inventus’ in an appeal from a Justice of the Peace, were equivalent to service of a citation.
*465“In Vandegrift v. Page, 5 Harr. 439, the Court of Errors and Appeals held that two returns of ‘non est inventus’ on a citation issued on a writ of error to the Superior Court were sufficient to enable the Court to review the judgment.
“In Wiggin v. Massey, 27 Del. (4 Boyce) 482, 90 A. 40, the Court applied the same practice to certiorari to a Justice of the Peace, holding that on failure of personal service the Court would hear and determine the exceptions on two returns of non est inventus.
“All of, these cases recognize that while the right of appeal may be given by Constitution or statute, such right would become inoperative unless some such rule, as above indicated, was put in force, and consider a respondent practically within the jurisdiction of the Court, because of service or appearance to the proceedings below, and that two returns of non est inventus are equal to service (Woolley, Del. Prac., 1424, 1425).
“We apply the same practice and accordingly hold, that in an appeal from a decision of the Register of Wills, two returns of non. est inventus are equivalent to the service of a citation.”
In the present case, upon the docketing of the appeal, a writ of summons sur appeal was issued returnable to the March Term, 1936, of this Court, directing the respondent to appear and answer the appeal, and was by the Sheriff of this County returned “non est inventus;” thereafter an alias writ was issued to the next ensuing term of this Court, being the May Term, 1936, likewise directing the respondent to appear and answer the appeal which was by the Sheriff of this County returned with the following endorsement thereon:
“Summoned H. Feinberg Furniture Co., a corporation of the State of Delaware, p. b. r., by serving the within writ and delivering a copy thereof personally to William Feinberg, Secretary and Treasurer of the said H. Feinberg Furniture Co., a corporation as aforesaid on the Eighth day of April, A. D. 1936. The President or other head officers of the said H. Feinberg Furniture Co., a corporation as aforesaid residing without the State of Delaware.”
The respondent contends that the writ of alias summons sur appeal was not served upon William Feinberg, its Secretary and Treasurer, nor was any copy of the summons left with him, and it denies knowledge that the appeal was pending prior to the entry of the judgment against it in this Court.
*466The opinion of the majority of the Court is to the effect that the return of the Sheriff to the alias ivrit imports verity and cannot be contradicted. To what extent, if any, the return imports verity is not material for the consideration of this case. If it is not a false return, the respondent had due notice of the appeal. If on the other hand it is a false return, then a return according to the facts would of necessity have shown either a service on the respondent or it would have been returned by the Sheriff “non est inventus” and as a result the respondent would have had notice o'f the appeal by reason of the service, or he would have been charged with notice by reason of the two returns of “non est inventus."
The issuance and return of the original and alias summons were, for the purpose of giving notice to the respondent of the appeal, at least equal to two returns of “non est inventus” and were therefore sufficient to give notice to the respondent of the filing of the appeal.
The other reason advanced by the respondent as a ground for opening the judgment, namely, “that it has a just and legal cause of action against the appellant,” cannot be considered, as it alone would not be sufficient to authorize the Court to act in the absence of some statutory authority.
The prayer of the petition of the respondent should be refused.