Chapter 39. Pleading and Practice
TITLE 10
Courts and Judicial Procedure
Procedure
CHAPTER 39. PLEADING AND PRACTICE
§ 3901. Affidavits of defense; judgments by default on written instruments; opening judgments.
(a) In all actions upon bills, notes, bonds or other instruments of writing for the payment of money or for the recovery of book accounts, on foreign judgments, and in all actions of scire facias on recognizances, judgments or mortgages, the plaintiff may specifically require the defendant or defendants to answer any or all allegations of the complaint by an affidavit setting forth the specific nature and character of any defense and the factual basis therefor, by the specific notation upon the face of the complaint that those allegations must be answered by affidavits.
(b) If defense is to a part only of the cause of action, the defendant, or if there be more than 1, any 1 or more of them shall, in such affidavit, specify the sum which the defendant or they admits or admit to be due, and judgment shall be entered for the plaintiff at the plaintiff's election for the sum acknowledged to be due.
(c) A defendant need not file an affidavit to answer any allegation, whether or not designated pursuant to this section, unless the plaintiff or plaintiffs files with the complaint a copy of the instrument of writing, book entries or claims, or, in case of a scire facias, a certified abstract or transcript of the judgment, mortgage or recognizance, and in case of a suit on a foreign judgment a copy of the judgment, certified to under 28 U.S.C. § 1738.
(d) If the plaintiff or plaintiffs complies with this section, and the defendant or defendants fails to respond to the designated allegations by affidavit filed with the answer or answers, the designated allegations will be deemed admitted, and default judgment may be entered thereon, in the discretion of the Court and upon motion by the plaintiff.
(e) Upon any judgment under this section a stay of execution for 6 months shall be granted on security being given by the defendant for the payment of such judgment, with interest and costs, in such form as by the rules of the Court are prescribed. In case of a suit by or against a corporation, the affidavit by the cashier or treasurer shall be sufficient in this section. In case of security being given as aforesaid by the defendant, the entry of such security shall have all the force and effect of a judgment, and at the expiration of the stay given, the judgment, with costs, may be collected by execution process sued out jointly or severally against the principal and surety. Any affidavit authorized under this chapter may be taken out of this State before any judge of any court of record, the mayor or chief magistrate of any city or borough, a Commissioner of Deeds for this State, or any consul or vice-consul of the United States, or before any notary public of any state or territory within the United States or of the District of Columbia. The affidavit shall be certified under the hand and official seal, or seal of the court, city or borough, as the case may be, of the person taking the same.
(f) Upon sufficient cause shown, the Court may open such judgment and let the defendant into a trial, security being first given, in manner and form as provided in subsection (e) of this section, for the payment of such judgment, with interest and costs, as the plaintiff may recover in such action.
(g) In actions commenced by a capias ad respondendum, if special bail is not given at the term to which the process is returnable, the plaintiff may, at the plaintiff's election, on the last day of the term, cause a common appearance to be entered for the defendant, and move for judgment, under this section, in like manner as if special bail had been given.
(h) The amount of a judgment by virtue of this section shall be ascertained under the order of the Court, and shall not exceed the sum demanded in the complaint filed by the plaintiff.
(i) The Court, in its discretion, may extend the time in which the defendant or defendants has to answer or otherwise do anything authorized by its Rules of Civil Procedure.
Code 1852, §§ 2305-2308; 14 Del. Laws, c. 556, § 2; 16 Del. Laws, c. 142; 18 Del. Laws, c. 223; Code 1915, § 4169; Code 1935, § 4648; 41 Del. Laws, c. 210; 42 Del. Laws, c. 151; 43 Del. Laws, c. 232; 10 Del. C. 1953, § 3901; 65 Del. Laws, c. 296, § 1; 70 Del. Laws, c. 186, § 1.;
§ 3902. Assignee suing in own name.
A person to whom a contract, express or implied, has been transferred or assigned, either in accordance with a statute or with the common law, may sue thereon in his or her own name.
Code 1915, § 4210A; 30 Del. Laws, c. 228; Code 1935, § 4684; 10 Del. C. 1953, § 3902; 70 Del. Laws, c. 186, § 1.;
§ 3903. Bail bonds, recognizances, peace bonds or appearance bonds; actions on.
Whenever any court orders and adjudges a bail bond, recognizance, or bond to keep the peace, or for the appearance of a defendant or of a witness, in any court, forfeited, then in any action on such forfeited bail bond, recognizance, or bond to keep the peace, or for the appearance of a defendant or of a witness, if a copy of such bail bond, bond, or recognizance has been filed with the complaint, the Attorney General, or any other attorney, on behalf of the State, or plaintiff, shall be at liberty to move for judgment after the defendant's time for filing his or her answer has expired, unless the defendant or one of the defendants, if there be more than one, or some one for such defendant or defendants, has filed an affidavit of defense in the action, stating therein the nature and character of the same. The Attorney General shall sue upon and collect all such forfeited bail bonds, recognizances, or bonds.
Code 1852, § 2311; 26 Del. Laws, c. 268; Code 1915, § 4173; Code 1935, § 4652; 10 Del. C. 1953, § 3903; 70 Del. Laws, c. 186, § 1.;
§ 3904. Suits and judgments by and against unincorporated associations.
An unincorporated association of persons, including a partnership, using a common name may sue and be sued in such common name and a judgment recovered therein shall be a lien like other judgments, and may be executed upon by levy, seizure and sale of the personal and real estate of such association, and also that of the persons composing such association in the same manner with respect to them as if they had been made parties defendant by their individual names. Satisfaction thereof may also be obtained by attachment process.
13 Del. Laws, c. 32, § 1; Code 1915, § 4198; Code 1935, § 4676; 10 Del. C. 1953, § 3904; 59 Del. Laws, c. 104, § 2.;
§ 3905. Action for detention of goods and chattels.
When any goods or chattels are unlawfully detained from the owner or the person entitled to the possession thereof, such owner or person may have remedy to recover the same by a civil action.
Code 1852, § 2325; Code 1915, § 4185; Code 1935, § 4664; 10 Del. C. 1953, § 3905.;
§ 3906. Action to recover goods seized by execution or attachment.
A civil action may be brought to recover goods and chattels seized by virtue of any process of execution or attachment, with damages and costs for the taking and detention thereof, against the officer seizing the same, at the suit of the owner of such goods and chattels not being the defendant in the execution or attachment, the proper pledges and security being given, as in other cases, by the plaintiff in such civil action, before delivery to him of the goods and chattels sought to be recovered.
Code 1852, § 2326; Code 1915, § 4186; Code 1935, § 4665; 10 Del. C. 1953, § 3906.;
§ 3907. Demand in actions to recover goods and chattels; necessity for proof.
In all actions to recover goods and chattels, no proof of demand shall be necessary, but the bringing of the action shall be considered a sufficient demand for all purposes. The failure at the trial to prove any demand shall not be a cause for dismissal, nor shall such failure inure in anywise whatsoever to the benefit or advantage of the defendant in the action.
18 Del. Laws, c. 220; Code 1915, § 4187; Code 1935, § 4666; 10 Del. C. 1953, § 3907.;
§ 3908. Judgments by confession; warrant of attorney.
No complaint shall be necessary nor shall any cognovit be required for the confession of any judgment. Every warrant of attorney authorizing the confession of judgment, whether after complaint or otherwise, shall be taken to authorize such confessions without the filing of any such complaint; except as provided in § 2306 of this title.
13 Del. Laws, c. 32, § 2; Code 1915, § 4199; Code 1935, § 4677; 10 Del. C. 1953, § 3908; 58 Del. Laws, c. 240, § 3.;
§ 3909. Complaint, declaration or cognovit upon judgments D.S.B. (debt without a writ--debitum sine breve)
No judgment D.S.B., entered, shall be taken to be invalid because it does not appear that any complaint or cognovit was filed prior to the entering of the same, but whenever such complaint is required by the bond on which such judgment was entered, the court before whom any question is raised about the validity of such judgment for want of such complaint shall allow such complaint to be filed, nunc pro tunc, and the filing thereof, by virtue of such allowance, shall have the same effect as if it had been filed as the authority for the entering of such judgment.
13 Del. Laws, c. 32, § 3; Code 1915, § 4200; Code 1935, § 4678; 10 Del. C. 1953, § 3909.;
§ 3910. Disclaimer of interest by defendant; interpleader.
The defendant in any action brought in the Superior Court for the recovery of money, or of any goods, chattels, or the value thereof in damages, which shall have come lawfully to the defendant's hands or possession, may, at any time after the complaint is filed, and before the answer is filed, by a suggestion to be filed of record, disclaim all interest in the subject matter of such action, and offer to bring the same into court, or to pay or dispose thereof as the Court orders. If the defendant also alleges, under oath or affirmation, that the right thereto is claimed by or supposed to belong to some person not party to the action (naming such person), who has sued or is expected to sue for the same, or shows some probable matter to the Court to believe that such suggestion is true, the Court may, thereupon, order the plaintiff to interplead with such third person, and make such rules and orders in the cause, and issue such process for the purpose of making such third person party to the action, and for carrying such proceeding to interplead into full and complete effect, and may render such judgment or judgments thereon as shall be agreeable to the rules and practice of the law in like cases.
17 Del. Laws, c. 218; Code 1915, § 4201; Code 1935, § 4679; 10 Del. C. 1953, § 3910; 70 Del. Laws, c. 186, § 1.;
§ 3911. Recognizance of plaintiff upon interpleader.
If the process issued upon an order under § 3910 of this title to interplead is not served, or personal notice thereof is not given to the third person referred to in such section, the Court may, upon giving judgment for the plaintiff, require the plaintiff to enter into a recognizance, and if it deems necessary, with sufficient surety, to interplead with such third person if afterwards, and before the expiration of the time which would be allowed to the plaintiff to prosecute his or her claim against the defendant, such third person should appear in the Court and claim the money, or the goods or chattels, or the value thereof.
17 Del. Laws, c. 218; Code 1915, § 4202; Code 1935, § 4680; 10 Del. C. 1953, § 3911; 70 Del. Laws, c. 186, § 1.;
§ 3912. Counsel fees; recovering in actions on written instruments.
In all causes of action, suits, matters or proceedings brought for the enforcement of any note, bond, mechanics lien, mortgage, invoice or other instrument of writing, if the plaintiff or lien holder in the action, suit or proceeding recovers judgment in any sum, the plaintiff or lien holder may also recover reasonable counsel fees, which shall be entered as a part of the judgment in the action, suit or proceeding. Such counsel fees shall not in any such action, suit or proceeding, exceed 20 percent of the amount adjudged for principal and interest. Such counsel fees shall not be entered as a part of such judgment unless the note, bond, mortgage, invoice or other instrument of writing sued upon, by the terms thereof, expressly provides for the payment and allowance thereof, except in the cases of mechanics liens in which no express agreement shall be necessary in order to entitle the lien holder to reasonable counsel fees.
27 Del. Laws, c. 286; Code 1915, § 4204; 38 Del. Laws, c. 202, § 1; Code 1935, § 4682; 10 Del. C. 1953, § 3912; 68 Del. Laws, c. 63, § 1; 70 Del. Laws, c. 186, § 1.;
§ 3913. Counterclaim in suits by or against executors or administrators.
If either party sue or be sued as an executor or administrator, and there are mutual debts or credits or other claims between his testator or intestate and the other party, one debt or credit may be set off against the other and a counterclaim may be asserted as in other actions.
Code 1852, § 2328; Code 1915, § 4189; 37 Del. Laws, c. 264, § 2; Code 1935, § 4668; 10 Del. C. 1953, § 3913.;
§ 3914. Proof of partnership.
In any action by or against partners, the plaintiff may require the defendant or defendants to deny the allegation of partnership by affidavit filed with the answer, by the specific notation of the need for a denial by affidavit within the paragraph alleging partnership. Any defendant so answering shall deny the existence of the partnership as alleged, and stating to the best of the defendants' knowledge and belief whether there is any partnership in relation to the subject matter of the action, and who are the partners therein. Where plaintiff has complied with this section, failure of any defendant to file an affidavit with the answer shall be deemed an admission of the partnership as alleged.
Code 1852, § 2310; Code 1915, § 4171; Code 1935, § 4650; 10 Del. C. 1953, § 3914; 65 Del. Laws, c. 296, § 2; 70 Del. Laws, c. 186, § 1.;
§ 3915. Proof of incorporation or corporate existence.
In any action by or against any corporation, the plaintiff may specifically require the defendant or defendants to deny the allegation of the incorporation and existence of the corporation by affidavit filed with the answer, by the specific notation of the need for denial by affidavit within the paragraph alleging the corporate existence. Any defendant so answering shall deny the incorporation and existence of the corporation as alleged, and stating to the best of affiant's knowledge whether there is any corporation existing which has a relationship to the subject matter of the action. Such affidavit may be made by the president, secretary, treasurer or any director of any corporate defendant. Where plaintiff has complied with this section, failure of any defendant to file an affidavit with its answer shall be deemed an admission of existence of the corporation as alleged.
16 Del. Laws, c. 535; Code 1915, § 4172; Code 1935, § 4651; 10 Del. C. 1953, § 3915; 65 Del. Laws, c. 296, § 3.;
§ 3916. Proof of agency in operation of motor vehicle.
In any action arising out of the operation of any vehicle, in which it is alleged that the operator of the vehicle was a servant, agent or employee of the defendant or defendants, the plaintiff may specifically require the defendant or defendants to deny the allegation that the operator of the vehicle was a servant, agent or employee of the defendant or defendants by affidavit filed with the answer, by the specific notation of the need for denial by affidavit within the paragraph alleging that the operator of the vehicle was a servant, agent or employee of defendant or defendants. Any defendant so answering shall deny that the operator of the vehicle was operating the vehicle at the time of the occurrence as a servant, agent or employee of the answering defendant, and/or deny that the operator of the vehicle was operating the vehicle in and about the course of duties as a servant, agent or employee of the answering defendant and set forth the factual basis for the denial. Where plaintiff has complied with this section, failure of a defendant to file an affidavit with the answer shall be deemed an admission that the operator of the vehicle was a servant, agent or employee of the defendant.
Code 1935, § 4651A; 44 Del. Laws, c. 176; 10 Del. C. 1953, § 3916; 65 Del. Laws, c. 296, § 4; 70 Del. Laws, c. 186, § 1.;
§ 3917. Proof of signatures in actions or written instruments.
In any action brought upon any deed, bond, bill, note or other instrument of writing, a copy of which has been filed with the complaint, the plaintiff may specifically require the defendant or defendants to deny the allegation that the defendant's or defendants' signature appears on the instrument by affidavit filed with the answer, by the specific notation of the need for denial by affidavit within the paragraph alleging that the signature of defendant or defendants appears upon the instrument. Any defendant so answering shall specifically deny that the defendant's signature appears on the instrument. Where plaintiff has complied with this section, failure of any defendant to file an affidavit with the answer shall be deemed an admission of the signature as alleged.
Code 1852, § 2309; Code 1915, § 4170; Code 1935, § 4649; 10 Del. C. 1953, § 3917; 65 Del. Laws, c. 296, § 5; 70 Del. Laws, c. 186, § 1.;
§ 3918. Recognizance of applicant for certiorari to justice of the peace.
(a) On the issuing of a writ of certiorari to a justice of the peace, the party applying therefor, shall enter into a recognizance to the defendant in a reasonable penalty, and with sufficient surety to be approved by the Prothonotary with condition to be void if the plaintiff therein prosecutes the writ to effect and pays the condemnation money and all costs, or otherwise abide the judgment of the Superior Court in the case if he or she fails to make his or her plea good.
(b) The recognizance shall be entered by the Prothonotary in the docket where the certiorari is entered, and a note of the recognizance having been taken, shall be indorsed on the writ, or the justice shall not obey it.
(c) No further surety shall be required, although other writs may be issued to complete the record; but the Court may order better security.
Code 1852, §§ 2319-2321; Code 1915, § 4181; Code 1935, § 4660; 10 Del. C. 1953, § 3918; 70 Del. Laws, c. 186, § 1.;
§ 3919. Defense in civil libel actions.
In actions for damages for the writing or publishing of a libel, where the truth is pleaded and given in evidence, if it is found that the same was written or published properly for public information, and with no malicious or mischievous motives, the court or jury may find for the defendant.
11 Del. Laws, c. 449, § 2; Code 1915, § 4218; Code 1935, § 4693; 10 Del. C. 1953, § 3920.;
§ 3920. Actions for price of newspapers or magazines received by mail; necessity for express order.
No action shall be brought to charge any person upon any promise or agreement for the subscription price to any newspaper, magazine, periodical, or publication whatsoever, when such promise or agreement arises from such person receiving through the mails any newspaper, magazine, periodical, or publication, unless such newspaper, magazine, periodical, or publication shall have been, previous to its being so received, expressly ordered by such person from the publisher thereof.
22 Del. Laws, c. 454; Code 1915, § 4096; Code 1935, § 4587; 10 Del. C. 1953, § 3921.;
§ 3921. Presumption of proper administration of oath.
When it appears that an oath or affirmation has been administered by competent authority, it shall be presumed to have been properly administered, unless the contrary appear.
Code 1852, § 2509; Code 1915, § 4428; Code 1935, § 4886; 10 Del. C. 1953, § 3922.;
§ 3922. Destruction of property by minors; recovery of damages from parents.
Any municipal corporation, county, town, school district and agency of the State or any person, partnership, corporation or association, or any religious organization whether incorporated or unincorporated, shall be entitled to recover damages in an appropriate civil action in an amount not to exceed $10,000 in a court of competent jurisdiction from the parents or guardians of any minor under the age of 18 years, living with the parents, who shall intentionally or recklessly destroy or damage property, real, personal or mixed, belonging to such municipal corporation, county, town, school district or agency of the State, or person, partnership, corporation or association or religious organization.
10 Del. C. 1953, § 3923; 51 Del. Laws, c. 321; 59 Del. Laws, c. 112, § 1; 62 Del. Laws, c. 166, § 1; 62 Del. Laws, c. 315, § 2; 66 Del. Laws, c. 234, § 1; 77 Del. Laws, c. 40, § 1.;
§ 3923. Prosecution and defense of actions by persons of the age of 18 years or older.
(a) Any person of the age of 18 years or older who is not otherwise incompetent may bring, file, prosecute, defend, litigate, settle, dismiss or otherwise compromise any action in law or in equity in any court without the interference or appointment of a guardian, guardian ad litem, next friend or other legal representative.
(b) Any person of the age of 18 years or older who is not otherwise incompetent may be appointed by any court as guardian ad litem, next friend or other legal representative of a person who has not reached the age of 18 years.
10 Del. C. 1953, § 3924; 58 Del. Laws, c. 440, § 2.;
§ 3924. Causes of action abolished for alienation of affections, criminal conversation, seduction, enticement and breach of contract to marry.
The rights of action to recover sums of money as damages for alienation of affections, criminal conversation, seduction, enticement, or breach of contract to marry are abolished. No act done in this State shall operate to give rise, either within or without this State, to any such right of action. No contract to marry made or entered into in this State shall operate to give rise, either within or without this State, to any cause or right of action for its breach.
10 Del. C. 1953, § 3925; 58 Del. Laws, c. 489, § 1.;
§ 3925. Public officers and employees.
Any public officer or employee, in a criminal or civil action against the person arising from state employment, shall be entitled to petition the court for a court-appointed attorney to represent the person's interests in the matter. If the judge, after consideration of the petition, examination of the petitioner and receipt of such further evidence as the judge may require, determines that the petition has merit, the judge shall appoint an attorney to represent the interests of such public officer or employee. The court-appointed attorney shall represent such person at all stages, trial and appellate, until the final determination of the matter, unless the attorney is earlier released by such person or by the court. The court may first appoint an attorney from the Department of Justice. If the court determines that the Department is unable to represent such public officer or employee, the court may appoint an attorney from the Office of the Public Defender in criminal actions only, and in civil actions may appoint an attorney licensed in this State. This section shall also apply to all federal courts within this State.
60 Del. Laws, c. 474, § 1; 60 Del. Laws, c. 676, § 1; 70 Del. Laws, c. 186, § 1.;
§ 3926. Production of records, jurisdiction.
(a) Prompt production of records. -- A health care provider who receives an appropriate authorization duly signed by an existing or former patient, guardian or personal representative, shall produce a true and correct complete copy of the requested medical records, which shall be produced in a reasonably legible fashion within 45 days of receipt of the request. The health care provider's fee for copying the records shall be reasonable. If prepayment is required by the health care provider, written notice of prepayment shall be provided to the requesting party within 14 days of the receipt of the original request. Upon payment of any prepayment charge, the health care provider shall produce the requested records within the latter of 14 days of receiving payment or 45 days of receipt of the original request.
(b) A health care provider may object in writing to production of the records for good cause. Any objection must state the grounds for failure or refusal to comply with the records request and must be served on the requesting party within 30 days of the date of receipt of the request. Said objection, if found to be for good cause, shall serve to toll the time period allowable for production of records.
(c) Failure or refusal to produce medical records pursuant to this section shall result in a civil penalty not to exceed $25 per day for every business day the records are delinquent in being produced in addition to any other sanctions deemed appropriate by the court, provided however, that motion to the Court to enforce compliance by court order must be made by the requesting party no later than 60 days from the date of the original request. If the records produced are incomplete, the requesting party shall have a reasonable time following discovery of the missing records in which to file a motion with the court for enforcement of this section.
(d) If the requesting party is a plaintiff in a complaint pending before a court of competent jurisdiction alleging health care negligence, this statute shall not apply to any request for medical records served on a named defendant(s) in that litigation.
(e) The Superior Court shall have jurisdiction over this section and shall schedule such matters on an expedited basis.
74 Del. Laws, c. 148, § 3.;