Civil Post-Judgment Procedures in the Justice of the Peace Court

Vacating a Default Judgment

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A defendant against whom a default judgment has been entered may file a motion to vacate the default judgment. The motion should be on a Civil Form 11 (Request for Motion Hearing). If you are using a Form 11 that you obtained online, you should make four copies of the Form. You should retain one copy for your records and take, or mail, the original plus three copies, along with the filing fee, to the Court. (If you are using a carbonized copy of the Form 11 supplied by the Court, you do not need to make any additional copies, other than one for your own records.). In the motion, the defendant should explain why he or she failed to answer the summons (let the judgment go to a default) and/or any other reasons why the default judgment should be vacated.

In debt, trespass and replevin actions, such a motion should normally be filed not more than 15 days after the judgment by default, unless service was made by certified mail, in which case, the motion should be filed not more than 30 days after the default judgment.

In summary possession actions, the motion to vacate the default judgment should be filed not more than 10 days after entry of the default judgment.

However, in a limited number of exceptional circumstances, such as if the default judgment is legally void or if the judgment has been satisfied or discharged, the defendant may not be bound by the above time limits and may file a motion to vacate the default judgment as long as the motion is filed within a reasonable time.

For further information on vacating default judgments see Justice of the Peace Court Civil Rule 60.

Vacating a Non-Suit Judgment

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A plaintiff seeking to vacate a non-suit judgment should explain why he or she failed to appear at the time scheduled. A motion to vacate a non-suit judgment should be followed within the following time:

• Summary Possession (Landlord/Tenant) Actions—within 10 days of the entry of the non-suit judgment.
• Debt, Trespass and Replevin Actions—within 15 days of the entry of the non-suit judgment, or if service was made by certified mail, within 30 days.

The motion should be on a Civil Form 11 (Request for Motion Hearing). If you are using a Form 11 that you obtained online, you should make four copies of the Form. You should retain one copy for your records and take, or mail, the original plus three copies, along with the filing fee, to the Court. (If you are using a carbonized copy of the Form 11 supplied by the Court, you do not need to make any additional copies, other than one for your own records.)

How to Appeal a Decision

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If you disagree with the judge's decision in a civil case in the Justice of the Peace Court, you may appeal. Appeals in all cases, except summary possession (landlord/tenant) cases are heard in the Court of Common Pleas. Appeals in summary possession cases are heard in the same Justice of the Peace Court which heard the original case by a panel of three judges (not including the judge who heard the case originally). The applicable appeal procedures are as follows:

For all cases other than summary possession cases (debt, trespass and replevin cases)

The appeal must be filed within fifteen days from the date of the judgment. The appeal should be filed in the Court of Common Pleas. You may prefer to have a lawyer in the Court of Common Pleas because of the technicalities involved in preparing, filing, perfecting and presenting the appeal. An artificial entity such as a corporation or public body must be represented by a lawyer in the Court of Common Pleas.

To complete the appeal, you must:

• Request a transcript from the Justice of the Peace Court which heard your case;
• Pay the appropriate fee for the transcript to the Justice of the Peace Court;
• File all forms required by the Court of Common Pleas; and
• Pay the filing fee required by the Court of Common Pleas.

For Summary Possession (Landlord/Tenant) cases

• An appeal must be filed in the Justice of the Peace Court which issued the judgment within five days of the date of the judgment.
• The Civil Form 32 (Landlord-Tenant Appeal), along with the filing fee, should be filed with the Court. If you are using a Civil Form 32 that you obtained online, you should make four copies of the Form. You should retain one copy for your records and take, or mail, the original plus three copies, along with the filing fee, to the Court. (If you are using a carbonized copy of the Form 32 supplied by the Court, you do not need to make any additional copies, other than one for your own records.)
• In addition, a cash bond may be required to prevent eviction from taking place. If you file a motion to reopen the judgment in a summary possession case, this does not stop the issuance of a writ of possession.
• For further information on appeals, see Chapter 23 of the Delaware Appellate Handbook.

Motion for A New Trial

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Either party has 10 days, starting the day after the judgment is signed by the judge, to file a motion for a new trial as provided under Justice of the Peace Court Civil Rule 59. The party seeking a new trial must file a Civil Form 11 (Request for Motion Hearing), along with the applicable fee, with the Court within the 10 day time period] . If you are using a Form 11 that you obtained online, you should make four copies of the Form and any attachments. You should retain one copy for your records and take, or mail, the original plus three copies, along with the filing fee, to the Court. (If you are using a carbonized copy of the Form 11 supplied by the Court, you do not need to make any additional copies, other than one for your own records.)

A motion for a new trial will usually be heard by the Justice of the Peace who originally heard the case. The ability of the Justice of the Peace to grant a motion for a new trial is limited. For example, the reason given for requesting a new trial may be newly discovered evidence. However, for a judge to grant a motion for a new trial based upon newly discovered evidence, the party requesting the new trial must show all of the following:

1. the newly discovered evidence is important enough to change the result in the case;
2. the evidence could not have been discovered prior to the original trial with reasonable investigation; and
3. the evidence does not merely repeat or dispute evidence presented in the original trial.

If the motion is timely filed (within 10 days from the date of signing of the judgment), the period permitted for appeals does not include the days between the filing of the motion for a new trial and the judge's decision on the motion. However, if a motion for a new trial is filed after 10 days from the date of judgment, the time for filing the appeal continues to run and the period permitted for the appeal may pass before any action is taken by the Court on the motion for a new trial. If that happens, the party may be unable to file an appeal.