Summary
In Wiener v. Wiener, 7 Terry 343, 83 A.2d 749, the Court discussed certain procedural aspects of raising defenses in contested cases.
Summary of this case from Street v. StreetOpinion
October 25, 1951.
CAREY and LAYTON, J.J., sitting.
Clair J. Killoran for Plaintiff.
Joseph H. Flanzer for Defendant.
Motion under Rule 104 of the Rules of the Superior Court to deny right of defendant to appear and contest an action for divorce. Denied.
Plaintiff filed an action for divorce against defendant upon the ground of extreme cruelty. Defendant entered an appearance within twenty days of service upon the defendant but filed no answer. On the day of trial, plaintiff moved that defendant be denied the right to appear and defend for failure to file an answer. Plaintiff's motion is based upon Rule 104 of the Rules of Superior Court which reads: "Rule 104. Answer in Contested Divorce.
"If the defendant in a divorce action shall desire to defend the action he shall serve his answer twenty days after personal service or service by publication. The failure to serve an answer shall not entitle the plaintiff to a judgment by default and upon defendant's failure to file an answer, the cause shall proceed to trial as provided by statute."
Defendant contends that Rule 104 does not require that an answer be filed but, if it does, he prays for permission to file an answer and be let into trial for the purpose of defending the action.
Superior Court for New Castle County, No. 535, Civil Action, 1951.
Prior to the adoption of the new Rules of the Superior Court, it was the practice that where the defense to a divorce action was to consist of no more than a general denial of the allegations of the petition, no answer need be filed. Otherwise, a formal answer was required. 2 Wooley, Delaware Practice, Sec. 1636; Banks v. Banks, 6 Penn. 442, 67 A. 835; Bancroft v. Bancroft, 4 Boyce 9, 85 A. 561; Palese v. Palese, 6 Boyce 584, 101 A. 438. In our opinion, Rule 104 has changed this practice and requires the filing of an answer in every case where defendant desires to defend and this is so whether the defense consists of a general denial or contains matter sounding in confession and avoidance, or both.
However, in view of the fact that this is the first interpretation of Rule 104 by this court, we think that defendant should be permitted to file an answer and be let into trial subject, nevertheless, to plaintiff's right to move for a continuance should the answer raise a defense or defenses which he may be unprepared to meet. This ruling is clearly within the court's discretionary power. Rule 6(b).