Chapter 23. Prothonotary
TITLE 10
Courts and Judicial Procedure
Court Officers and Employees
CHAPTER 23. PROTHONOTARY
§ 2301. Compensation.
The salaries of the Prothonotaries in each county shall be established in accordance with Chapter 33 of Title 29.
23 Del. Laws, c. 60, § 7; Code 1915, § 1438; 40 Del. Laws, c. 139, § 1; Code 1935, § 1597; 44 Del. Laws, c. 98, § 1; 45 Del. Laws, c. 138, § 1; 46 Del. Laws, c. 298, § 1; 10 Del. C. 1953, § 2301; 49 Del. Laws, c. 282, § 2; 49 Del. Laws, c. 305; 50 Del. Laws, c. 419, § 1; 51 Del. Laws, c. 244; 52 Del. Laws, c. 174, § 4; 53 Del. Laws, c. 222, § 6; 54 Del. Laws, c. 23, § 7; 54 Del. Laws, c. 215, § 6; 56 Del. Laws, c. 204, § 3; 57 Del. Laws, c. 692, § 8; 59 Del. Laws, c. 514, § 2; 61 Del. Laws, c. 506, § 7; 65 Del. Laws, c. 163, § 2; 65 Del. Laws, c. 216, § 4; 66 Del. Laws, c. 185, § 11.;
§ 2302. Deputies and clerks.
(a) In each county the Judges of the Superior Court resident in the county shall name a chief deputy Prothonotary who shall perform such duties as shall from time to time be assigned by such Judges. The compensation of each such chief deputy shall be established by the Judges of the Superior Court resident in the county.
(b) The Prothonotaries of the respective counties may select and employ the deputies and clerks listed below:
New Castle County.
(1) An additional chief deputy who shall perform such duties as the Prothonotary shall authorize and direct in the administration of the office, and shall perform the duties of the Prothonotary in the Prothonotary's absence; and
(2) Such additional personnel as the Judges of the Superior Court resident in New Castle County shall from time to time authorize.
23 Del. Laws, c. 60, § 8; 24 Del. Laws, c. 86, § 2; 27 Del. Laws, c. 73; Code 1915, § 1439; 29 Del. Laws, c. 91; 32 Del. Laws, c. 67; 40 Del. Laws, c. 139, § 2; Code 1935, §§ 1191, 1598; 43 Del. Laws, c. 120, § 1; 44 Del. Laws, c. 100, §§ 1, 2; 44 Del. Laws, c. 101, § 1; 45 Del. Laws, c. 109, §§ 1, 2; 45 Del. Laws, c. 140, § 1; 46 Del. Laws, c. 298, §§ 1, 2; 47 Del. Laws, c. 192; 48 Del. Laws, c. 111, § 1; 10 Del. C. 1953, § 2302; 49 Del. Laws, c. 55; 49 Del. Laws, c. 88; 52 Del. Laws, c. 332, § 1; 53 Del. Laws, c. 131; 55 Del. Laws, c. 85, § 32N; 57 Del. Laws, c. 216, § 1; 59 Del. Laws, c. 170, § 1; 60 Del. Laws, c. 327, § 1; 63 Del. Laws, c. 129, §§ 1, 2; 66 Del. Laws, c. 185, § 12; 70 Del. Laws, c. 186, § 1.;
§ 2303. Entry of judgments.
(a) Whenever a judgment is entered or signed in the Superior Court (except judgments on verdict when entered before the end of the term next after that in which the verdict is given), the Prothonotary shall set down on the docket the day, month, and year of actually entering or signing it. When entering the ascertained amount of a judgment given, "amount to be ascertained by the Prothonotary, or other person," the Prothonotary shall in like manner set down the true date of the entry.
(b) The Prothonotary, on entering a judgment on bond with warrant of attorney, or in taking a judgment by confession other than by virtue of such warrant, shall set down on the docket under such judgment, the precise hour and minute of the day when the same was entered or taken, and such judgment shall operate and take effect as liens, at and from the time so noted or entered on the record.
Code 1915, § 3764; Code 1935, § 4286; 10 Del. C. 1953, § 2303; 70 Del. Laws, c. 186, § 1.;
§ 2304. Judgment indices.
(a) The Prothonotary shall keep to every docket of the Prothonotary's office in which judgments are entered or signed, except the appearance docket, 2 indices of such judgments, the one of the plaintiffs' names in alphabetical order of the surnames, in connection with the names of their defendants, and the other of the defendants' names in like alphabetical order, in connection with the names of their plaintiffs. The Prothonotary shall index every judgment the same day it is entered or signed, except judgments entered in the appearance docket, which shall be transferred to the continuance docket and indexed within 2 weeks from such entry.
(b) A testatum fieri facias, and judgments of any court, state or federal, or of a justice of the peace entered in the Prothonotary's office to bind lands, shall be indexed as judgments. Also, when a case is continued, after verdict for the plaintiff without judgment, it shall be indexed as if judgment was given. Judgments of the Supreme Court, entered in the court below, shall be indexed as required by this section.
Code 1852, §§ 670, 671; Code 1915, § 3765; Code 1935, § 4287; 10 Del. C. 1953, § 2304; 70 Del. Laws, c. 186, § 1.;
§ 2305. Penalties for neglect of duty.
Whoever, being a Prothonotary, neglects any duty enjoined by § 2303 or 2304 of this title, shall be fined in such amount or imprisoned for such term, as the court, in its discretion, may determine. The Prothonotary shall further be answerable in a civil action to any person, injured by such default, for all damages sustained thereby, and such default shall be a breach of the Prothonotary's official obligation.
Code 1852, § 672; Code 1915, § 3766; Code 1935, § 4288; 10 Del. C. 1953, § 2305; 70 Del. Laws, c. 186, § 1.;
§ 2306. Entry of judgment by confession.
(a) A judgment by confession may be entered by the Prothonotary, either for money due or to become due, or to secure the obligee against a money contingent liability, or both, on the application by the obligee or assignee of a bond, note or other obligation containing a warrant for an attorney-at-law or other person to confess judgment.
(b) A judgment by confession shall not be entered as a final judgment, effective in all respects as a judgment after trial, until the Prothonotary gives written notice to the defendant-obligor by certified mail, return receipt requested, of an opportunity for a judicial determination as to whether the defendant-obligor understandingly waived his or her right to notice and an opportunity to be heard prior to the entry of final judgment against him or her.
(c) In the case of a defendant-obligor who was at the time of executing the document authorizing the confession of judgment, a nonresident, the plaintiff must also file with the Prothonotary an affidavit executed by the defendant-obligor stating:
(1) The sum of money for which judgment may be entered;
(2) Authorization of entry of judgment in the Superior Court of the State in and for a specific county;
(3) The contact with the State in the transaction;
(4) Defendant-obligor's mailing address and residence where he or she most likely would receive mail.
(d) The Prothonotary shall send by certified mail, return receipt requested, a copy of the document authorizing the confession of judgment, the notice as aforesaid and, where applicable, a copy of the defendant-obligor's affidavit provided for in subsection (c) herein.
(e) When service cannot be effected by certified mail, return receipt requested, service shall be accomplished by the publication of said notice once per week for 2 weeks in a newspaper of general circulation in the county in which the judgment is sought to be entered and also once per week for 2 weeks in a newspaper of general circulation in the county in which the defendant-obligor is last known to have resided.
(f) Prior to the issuance of any writ of execution sought on a confessed judgment entered prior to July 9, 1971, the Prothonotary shall serve on the defendant-obligor by certified mail, return receipt requested, or in the event of failure of service in that manner, by publication as heretofore provided, the notice as provided for in subsection (b) herein. If the defendant-obligor appears to contest the judgment, the appearance shall be noted and in the case of nonresidents, the appearance shall constitute the appointment of the Prothonotary as the defendant-obligor's agent to receive service. If the Prothonotary acts as the agent of the defendant-obligor to receive service, the Prothonotary must immediately forward to the defendant-obligor by certified mail, return receipt requested, all such service he receives, pursuant to the provisions of this section or the rules of court. Thereafter, the issues shall be joined on the question of the indebtedness and the question of whether there was an understanding waiver of notice and an opportunity to be heard prior to judgment having been entered against the defendant-obligor. At the hearing on the issues, if plaintiff prevails, the lien of the plaintiff's judgment shall relate back to the date of its original entry.
(g) At the conclusion of the hearing provided for in subsection (b) herein, if the plaintiff prevails on the issue of whether the defendant-obligor understandingly waived notice and an opportunity to be heard prior to the entry of judgment against him or her, then judgment shall be entered by the Prothonotary pursuant to this section as of the date the confessed judgment was originally lodged with the Prothonotary.
(h) In addition to the procedure herein set forth, the Superior Court may adopt rules for confession of judgments by defendant-obligor in open court; provided, however, the debtor is afforded a judicial determination on the question of whether he or she has understandingly waived any of his or her constitutional rights concerning the entry of judgment and the right to execution thereon.
(i) The Superior Court may adopt appropriate and specific rules to effectuate the intent and purpose of this section.
(j) Notwithstanding the opportunity for hearing provided in subsection (b) above the defendant-obligor will not be deemed to have waived the right to present defenses of which he or she had no knowledge at the time he or she signed the instrument containing a warrant of attorney to confess judgment, or which arose subsequent to the signing of such instrument. A stay of execution shall be automatically given on all judgments entered hereunder until the defendant-obligor is afforded an opportunity for hearing to present those defenses not deemed to have been waived. Prior to execution the Prothonotary shall serve notice to the defendant-obligor in the manner above provided for residents or nonresidents as the case may be, and such notice shall include a warning that defendant-obligor's property will be seized and sold or his or her wages attached on failure to appear.
Code 1852, § 674; Code 1915, § 3768; Code 1935, § 4290; 10 Del. C. 1953, § 2306; 58 Del. Laws, c. 240, § 1; 70 Del. Laws, c. 186, § 1.;
§ 2307. Attachment index in New Castle County.
The Prothonotary for New Castle County shall keep an indirect index in a docket for that purpose of all writs of foreign and domestic attachment which are issued from the court, and index the same at the time they are so issued. The index shall show the names of the defendants in such writs of attachment, in alphabetical order of the surnames in connection with the names of the plaintiffs therein, and the day of issuing the same. It shall also specify the appearance dockets and pages thereof in and on which such proceedings by attachment shall be docketed.
16 Del. Laws, c. 19; Code 1915, § 3769; Code 1935, § 4291; 10 Del. C. 1953, § 2307.;
§ 2308. Mechanics' Lien Docket.
The Prothonotary shall keep a Mechanics' Lien Docket and make all entries therein as provided by § 2724 of Title 25.
16 Del. Laws, c. 145, § 3; Code 1915, § 3770; Code 1935, § 4292; 10 Del. C. 1953, § 2308.;
§ 2309. Partnership and Association Docket.
The Prothonotary shall keep a Partnership and Association Docket, make all entries therein and perform all the duties relative to partnership and association certificates, as provided by § 3103, of Title 6.
25 Del. Laws, c. 146, § 3; Code 1915, § 3771; Code 1935, § 4293; 10 Del. C. 1953, § 2309.;
§ 2310. Certification of scire facias on mortgage.
Repealed by 72 Del. Laws, c. 26, § 2, eff. May 12, 1999.
§ 2311. Certification of sheriff's return on levari facias; fees.
Repealed by 72 Del. Laws, c. 26, § 3, eff. May 12, 1999.
§ 2312. Certification of fines; penalty.
(a) The Prothonotary, within 30 days after the end of every term of the Superior Court in the Prothonotary's county, shall transmit to the Auditor of Accounts an abstract, certified under his or her hand and seal of office, of every case in the court in which a fine or forfeiture was imposed at the term, stating the name of the party, the name of the sheriff, and the amount of the fine or forfeiture.
(b) The Prothonotary shall also, immediately after every term of the Superior Court in the county, transmit by mail to the State Treasurer, an abstract of all fines and forfeitures imposed by the Court at the term.
(c) Any Prothonotary failing to perform any of the duties imposed by this section shall be fined not more than $100.
(d) The court in which the conviction is obtained shall cause a copy of the record of such conviction to be transmitted to the General Assembly.
Code 1852, §§ 120, 122, 124-126, 675; Code 1915, §§ 1285, 3777; Code 1935, §§ 1484, 4299; 10 Del. C. 1953, § 2312; 70 Del. Laws, c. 186, § 1.;
§ 2313. Furnishing copies of sentences in criminal cases.
The Prothonotary shall deliver a copy of every sentence in a criminal case to the board, warden or other authority having the control and administration of the prison to which the prisoner is sentenced.
Code 1852, § 141; 21 Del. Laws, c. 247; 23 Del. Laws, c. 126; Code 1915, § 1292; Code 1935, § 1491; 10 Del. C. 1953, § 2313.;
§ 2314. Advance costs.
The Prothonotary shall require the advance payment of costs as provided in §§ 3102 and 8705 of this title.
Code 1915, § 3774; Code 1935, § 4296; 10 Del. C. 1953, § 2314.;
§ 2315. Affidavits.
The Prothonotary may take all affidavits to be used in the Superior Court.
11 Del. Laws, c. 225, § 5; Code 1915, § 3775; Code 1935, § 4297; 10 Del. C. 1953, § 2315.;
§ 2316. Purchase or contract for witness fees; penalty.
The Prothonotary shall not, directly or indirectly, purchase or contract for the fees of any witness attending the Superior Court. Any fees, so purchased, shall be forfeited. Any Prothonotary who purchases such fees shall be fined double the amount of the fees purchased.
Code 1852, §§ 145, 677; Code 1915, §§ 1294, 3779; Code 1935, §§ 1493, 4301; 10 Del. C. 1953, § 2316.;
§ 2317. Juries.
Repealed by 60 Del. Laws, c. 225, § 1.
§ 2318. Entry of letter "S" in judgment index upon satisfaction.
When satisfaction of a judgment is made by entry, or otherwise, the Prothonotary shall write the letter "S" in the index opposite the names of the parties in such judgment.
13 Del. Laws, c. 132, § 3; Code 1915, § 3776; Code 1935, § 4298; 10 Del. C. 1953, § 2318.;
§ 2319. Notation of satisfaction of judgments.
(a) When any judgment in the Superior Court appears, by the return of any execution thereon, to be wholly or partially satisfied, the Prothonotary shall note that fact on the record of the judgment, as required by §§ 4755 and 4756 of this title.
(b) When a judgment upon which a testatum fi. fa. or transcript has been issued and recorded in another county has been satisfied, the Prothonotary of the county where the original judgment is shall certify to the Prothonotary where the testatum fi. fa. or transcript has been recorded the fact of the satisfaction, whereupon the latter Prothonotary shall enter the fact of such satisfaction upon the record of the testatum fi. fa. or transcript, as provided by § 4757 of this title.
Code 1852, § 678; Code 1915, § 3780; Code 1935, § 4302; 10 Del. C. 1953, § 2319.;
§ 2320. Dower record.
In suits for dower, the Prothonotary shall record all the proceedings in books kept for that purpose exclusively.
Code 1852, § 679; Code 1915, § 3781; Code 1935, § 4303; 10 Del. C. 1953, § 2320.;
§ 2321. Notification of issuing writs of certiorari in motor vehicle cases.
The Prothonotary shall, upon issuing a writ of certiorari in any case involving a violation of the motor vehicle laws of this State, at once notify by mail the Motor Vehicle Commissioner of this State of the issuing of the writ.
Code 1935, § 4304A; 45 Del. Laws, c. 290, § 1; 10 Del. C. 1953, § 2321.;
§ 2322. Appointment of fence viewers.
The Prothonotary shall issue a warrant, under his or her hand and official seal, to each of the fence viewers of the Prothonotary's county, and notify the public of their appointment by as many advertisements, signed by the Prothonotary and posted in each hundred, as there are viewers therein.
Code 1852, § 143; Code 1915, § 1293; Code 1935, § 1492; 10 Del. C. 1953, § 2322; 70 Del. Laws, c. 186, § 1.;
§ 2323. Seal.
The Prothonotary of New Castle County may from time to time replace the seal or seals of his or her office. When such replacement is made the old seal or seals shall be destroyed in the Prothonotary's presence.
10 Del. C. 1953, § 2323; 51 Del. Laws, c. 345; 70 Del. Laws, c. 186, § 1.;
§ 2324. Deposits; distribution of interest.
(a) The Prothonotary shall deposit any sums of money held by the Prothonotary for costs or fees in accordance with policies and guidelines established by the State Treasurer.
(b) The Prothonotaries in each county shall distribute interest earned from and after October 1, 1987, on bail bond deposit accounts in the amount of 100 percent to the State Treasurer.
10 Del. C. 1953, § 2324; 58 Del. Laws, c. 556, § 1; 61 Del. Laws, c. 328, § 1; 63 Del. Laws, c. 158, § 1; 66 Del. Laws, c. 185, § 13; 67 Del. Laws, c. 47, § 36; 70 Del. Laws, c. 186, § 1.;