CHAPTER 267 - COURT OF COMMON PLEAS FOR NEW CASTLE COUNTY
AN ACT TO AMEND CHAPTER 169 OF THE REVISED CODE OF THE STATE OF DELAWARE, 1935, IN RELATION TO COURT OF COMMON PLEAS FOR NEW CASTLE COUNTY.
Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met, two-thirds of all the members elected to each branch of the Legislature concurring therein:
Section 1. That Section 6 of Chapter 169 of the Revised Code of the State of Delaware, 1935, being Code Section 5812, be and the same is hereby amended by striking out all of said section and inserting in lieu thereof a new section to be known as 5812, Section 6.
5812. Sec. 6. The writs, rules and processes of said Court shall be served and executed by the Sheriff of New Castle County and his deputies, by any constable for New Castle County, and also, in the case of criminal actions, by police officers of the City of Wilmington and officers of the State Police.
Any such constable, sheriff, or deputy sheriff making any arrest, serving any writs, rules, processes or warrants, or otherwise serving said Court, shall receive the same fees as are allowed by law to constables for such services performed on writs issued by Justices of the Peace.
The fees and mileage provided for in this section shall be taxed as part of the costs of each proceeding, and shall be paid by the Clerk of the said Court to such constable, sheriff, or deputy sheriff when said costs are paid; provided, however, that in all criminal actions brought before said Court of Common Pleas such fees and mileage charges, if the costs are not paid by the defendant in such proceedings, shall be paid by the Levy Court of New Castle County upon bills presented therefor, which shall be approved by the Judge of said Court of Common Pleas.
Section 2. That Section 9 of Chapter 169 of the Revised Code of Delaware, 1935, being Code Section 5815 of said Code, be and the same is hereby amended by striking out all of said section and substituting in lieu thereof a new section as follows:
5815. Sec. 9. All civil actions in the Court shall be begun by filing a statement of the plaintiff's claim without the issuance of any formal writ. The said statements shall consist of a concise recital of the facts which the plaintiff claims gave rise to his cause of action, divided into paragraphs, consecutively numbered, as is now the practice in bills filed in the Court of Chancery. Only one averment of fact as far as possible shall be included in one paragraph. Where the plaintiff's claim is based upon a written contract or other writing, a copy thereof shall be annexed to the statement of claim or reason given for the failure so to do. This statement may be filed by the plaintiff or his counsel. All statements shall be verified by the affidavit of the plaintiff or some responsible person for him, excepting counsel or said counsel's clerk or secretary, and shall be signed by the plaintiff or his counsel and shall be filed in duplicate.
The Clerk of said Court shall thereupon issue a summons under the seal of the Court requiring the defendant to appear and file an answer to plaintiff's claim within ten (10) days after service of the statement upon him in person or by leaving a copy of said summons and statement at his usual place of abode in the presence of some adult person at least ten (10) days before the day of appearance. In default of filing of an answer within ten (10) days the plaintiff may take judgment against the defendant as of course. In order to prevent judgment as • aforesaid, the defendant must file within ten (10) clays of the service of the summons and statement, either personally or by copy as aforesaid, an answer which shall consist of a series of numbered paragraphs corresponding to the paragraphs of the plaintiff's statement of his claim and shall contain an admission or denial of every fact averred, provided that if the defendant alleges himself to be ignorant as to the facts averred in any paragraph, he may so state and place the plaintiff upon proof of the same, as if they had been denied. All facts which the defendant does not deny or aver himself to be ignorant of and demand proof as aforesaid shall be deemed to be admitted.
The answer may be filed by the defendant or his counsel. All answers shall be verified by the affidavit of the defendant or some responsible person for him, excepting counsel or said counsel's clerk or secretary, and shall be signed by the defendant or his counsel. If the defendant has filed an answer, the case shall be at issue without any formal pleas unless he sets up new matter in separately numbered paragraphs in addition to those answering plaintiff's averments; in which case, plaintiff may, within five (5) days, reply to the same in the same manner and all new matter so averred an not denied by plaintiff, or of which he does not declare himself to be ignorant and demand proof, shall be deemed to be admitted. The case shall then be at issue. Plaintiff may move for judgment for want of a sufficient answer for all or a portion of the claim, provided, however, that the defendant in any action commenced in the said Court of Common Pleas may remove the same to the Superior Court of the State of Delaware in and for New Castle County, by filing with the Clerk of said Court of Common Pleas a motion for such removal and by depositing with him the amount necessary for the commencement of an action in the said Superior Court, whereupon the said cause with the records thereof shall be removed to said Superior Court, and the said deposit paid over to the Prothonotary of New Castle County, and the cause proceeded with as if begun anew in the said Superior Court; provided further, however, that the motion for such removal must be filed and the deposit made as aforesaid before the expiration of the time for the filing of an answer as hereinbefore provided.
When a case is at issue, it shall be the duty of the Judge of the said Court to arrange the trial thereof as promptly as possible, and notify counsel with as little delay as possible; provided, however, that upon application for an extension of time for filing an answer or a reply to new matter, the Court may in its discretion, for good cause shown, extend the time for filing such answer or reply to any matter; whenever the last day for filing a statement of claim, answer, a reply to any matter, for giving an appeal bond, or a bond in foreign attachment cases, shall fall upon the Sabbath Day or upon a legal holiday, such statement of claim, answer, or reply to any matter may be filed and such appeal bond or foreign attachment bond, may be given on the next succeeding secular or business day.
Section 3. That Section 10 of Chapter 169 of the Revised Code of Delaware, 1935, being Code Section 5816, be and the same is hereby amended by adding at the end of the said Section the following additional paragraphs:
Witnesses attending the Court shall receive the sum of Two Dollars ($2.00) for each day of attendance and three cents (3c) per mile going and returning.
In criminal cases, fees shall be taxed as a part of the costs of such proceedings and shall be paid to the person so entitled thereto when costs are paid; provided, however, that in all criminal cases the County Treasurer shall, upon the production of a Certificate of Attendance certified by the Court, pay the fees for witnesses on behalf of the State and on behalf of a person tried and acquitted in the Court.
Section 4. That Section 13 of Chapter 169 of the Revised Code of Delaware, 1935, being Code Section 5819, be and the same is hereby amended by adding to the end of the said Section the following paragraphs:
He shall before entering upon the duties of said office give bond to the State of Delaware in the sum of Two Thousand Dollars ($2,000.00) with approved surety to faithfully perform and execute all the duties of his office during his continuance therein, said bond to be approved by the Judge; and should the Clerk so appointed fail to give bond as required within ten (10) days from the date of his appointment, the Judge shall make a new appointment. The said bond shall be recorded in the Office for the Recording of Deeds in and for New Castle County and the Recorder of Deeds shall preserve the original thereof in his office.
The Clerk may take bail from the persons arrested when the Court is not in session, subject to revisions by the Court. He shall perform such other duties as shall be assigned to him from time to time by the Judge. In case of sickness or inability of the Clerk to serve, the Judge may appoint a Deputy Clerk to serve in the absence of the Clerk, which said Deputy Clerk shall have the same powers and duties as the Clerk and shall give like bond as provided in the preceding paragraph. Said Deputy Clerk shall receive a salary of Five Dollars ($5.00) per diem for the period during which he serves, said salary to be paid by the Levy Court of New Castle County.
Approved April 14, 1941.