CHAPTER 291

CREATING COURT OF COMMON PLEAS FOR SUSSEX COUNTY

AN ACT TO AMEND TITLES 10 AND 11, DELAWARE CODE OF 1953, BY CREATING A COURT OF COMMON PLEAS FOR SUSSEX COUNTY; PROVIDING FOR THE APPOINTMENT, SALARIES AND PAYMENT OF A JUDGE AND OTHER OFFICERS; PROVIDING FOR A SEAL AND RULES; PROVIDING FOR THE POWERS, DUTIES, JURISDICTION, RULES OF PROCEDURE OF THE COURT IN CIVIL AND CRIMINAL CASES; PROVIDING FOR THE RIGHT OF AN ACCUSED PERSON TO ELECT TO BE TRIED BY THE COURT, AND DUTY OF THE JUSTICE OF THE PEACE AND THE ARRESTING OFFICER TO ADVISE THE ACCUSED OF THIS RIGHT.

Be it enacted by the General Assembly of the State of Delaware (two-thirds of all the Members elected to each Branch thereof concurring therein):

Section 1. Title 10, Delaware Code of 1953, is amended by adding a new chapter to Title 10, known as Chapter 16, entitled "Court of Common Pleas for Sussex County" and by adding the necessary new sections beginning with § 1601:

Chapter 16. Court Of Common Pleas For Sussex County

Subchapter I. Organization And Operation

§ 1601. Creation; designation

There is created and established for Sussex County a Court of Record to be known as "The Court of Common Pleas for Sussex County" and hereinafter referred to in this chapter as the "Court".

§ 1602. Appointment of Judge; term; qualifications and salary

(a) The Governor shall appoint and commission a Judge for a term of twelve (12) years who shall hold and preside over the Court of Common Pleas for Sussex County.

(b) No person shall be eligible to hold the office of Judge of Court of Common Pleas in Sussex County unless he is a licensed, practicing attorney at law in good standing in the State of Delaware and a resident of Sussex County.

(c) The Judge of the Court of Common Pleas for Sussex County shall receive for his salary or compensation the sum of ten thousand dollars ($10,000.00) per year, payable monthly by the State Treasurer out of the General Fund of the State.

(d) The Judge upon assuming his duties, shall not practice law during his term of office.

§ 1603. Continuous session

The Judge of the Court of Common Pleas for Sussex County shall hold the first term of Court on the first Monday of the next calendar month following the date upon which this act takes effect and shall thereafter hold Court continuously throughout the year subject to such rules and regulations as the Judge thereof promulgates.

§ 1604. Place for holding Court

The Court shall be held in the Town of Georgetown. The Levy Court of Sussex County shall provide some suitable place in the corporate limits in the town of Georgetown for the holding of the Court. When the Superior Court is not in session, Court may be held in the Superior Court room.

§ 1605. Payment of expenses

All expenses of the Court for books, records, writs and other papers necessary for the Court shall be paid by the Levy Court of Sussex County upon a bill presented to the Levy Court and verified by the Judge of the Court.

§ 1606. Temporary assignment of Superior Court Judge

In the event the Judge of the Court of Common Pleas for Sussex County is unable for any cause to preside over the Court, the President Judge of the Superior Court, after notification, shall assign one of the Judges of the Superior Court of the State of Delaware to hold the Court of Common Pleas during the absence of the Judge.

§ 1607. Seal; rules of Court

The Judge of the Court, by and with the consent and advice of the Superior Court of the State of Delaware may, for and on behalf of the Court of Common Pleas for Sussex County, adopt a seal, make and publish general rules regulating the practice and procedure therein and the keeping of those records, including a schedule of costs and fees and providing for such deposits as are deemed necessary.

§ 1608. Disposition of monies

The fees, fines, costs or other sums of money received by the Clerk of the Court, constable or other officer of the Court shall be paid to the County Treasurer of Sussex County, except as otherwise provided in this chapter and also except fines and penalties which under any law of this State are required to be paid otherwise, and excepting also payments received toward the satisfaction of any judgment of the Court or in pursuance to any rule of the Court, which sum so received shall be paid into the Court and shall be subject to the order of the Court.

Subchapter Ii. Officers And Employees

§ 1621. Appointment of clerk and other officers; terms; compensation

(a) The Judge shall appoint a Clerk for the Court and such other officers as he deems necessary to perform the business of the Court.

(b) The Clerk or other officers shall hold office at the pleasure of the Judge and shall receive such salary or salaries as are fixed from time to time by the Judge.

(c) The combined salaries of such Clerk and other officers shall not exceed in the aggregate in any one year the sum of Twenty-Five Hundred Dollars ($2500.00).

(d) The salary of the Clerk shall be paid in equal monthly installments by the Levy Court of Sussex County and the salary or compensation of the other officers of the Court shall be paid by the Levy Court of Sussex County upon presentation of bill for such salary or compensation approved by the Judge.

§ 1622. Bond of Clerk

The Clerk shall, before entering upon the duties of the office, give bond to the State 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. The bond shall be approved by the Judge. 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.

§ 1623. Powers and duties of Clerk

(a) The Clerk shall have the care of the records of the Court and the records of all proceedings had before the Judge, and he shall receive all fees, fines and costs arising out of any proceedings had in the Court, or before the Judge, and shall pay the same over as in this Chapter provided.

(b) The Clerk may administer all necessary oaths; he shall enter the judgments, issue commitments and executions to enforce the same and make up and keep the records of the Court in all cases therein under the direction of the Judge. He shall issue all process under his hand and the seal of the Court, and test the same in the name of the Judge, signing such process by his title of Office, and shall tax costs.

(c) The Clerk may issue warrants upon complaint filed in writing, and under oath or affirmation, in all cases to be returnable before the Judge. The Clerk may take bail from persons arrested when the Court is not in session, subject to revision by the Court, which authority to take bail shall include the right to take such bail as is hereinafter provided.

§ 1624. Deputy Clerk

In case of sickness, absence or inability of the Clerk, the Judge may appoint a Deputy Clerk to serve in the absence of the Clerk. The Deputy Clerk shall have the same powers and duties as the Clerk. The Deputy Clerk shall receive a salary of Seven Dollars and Fifty Cents ($7.50) per diem for the period during which he serves. The salary shall be paid by the Levy Court of Sussex County.

§ 1625. Service of process; costs and expenses

(d) The writs, rules and processes of the Court shall be served and executed by any constable for Sussex County and/or any county or state officer, in any county of Delaware, who is authorized by law to serve general process; and also, in criminal actions by officers of the State Police.

(e) Any constable or county officer (except officers of the State Police), making any arrest, serving any writs, rules, processes or warrants, or otherwise serving the Court, shall receive the same fees as are allowed by law to constables for such service performed on writs issued by a justice of the peace.

() The fees and mileage provided for in this section shall be taxed as a part of the costs of each proceeding, and shall be paid by the Clerk of the Court to such constable or county officer when the costs are paid. In all criminal actions brought before the Court 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 Sussex County upon bills presented therefor, which have been approved by the Judge of the Court of Common Pleas.

Subchapter III. General Jurisdiction And Powers

§ 1641. Civil jurisdiction; amount in controversy

(a) The Court shall have concurrent jurisdiction in Sussex County with the Superior Court in all civil actions at law, arising ex contractu or ex delicto, where the value of the matter or thing in controversy, exclusive of interest, does not exceed the sum of One Thousand Dollars ($1,000.00).

(b) The amount claimed by the plaintiff, where the claim is for a sum certain and not in excess of One Thousand Dollars ($1,000.00), exclusive of interest, shall be conclusive as to jurisdiction of the Court.

(c) In all actions at law, not involving any sum certain, the plaintiff shall state in his complaint the amount of damages claimed or the value of the thing or matter in controversy, which statement shall be conclusive as to the jurisdiction of the Court.

(d) The Court shall also have and may exercise the same jurisdiction and powers in all civil actions as is vested in Justices of the Peace for Sussex County, including actions of forcible entry, detainer and holding over of tenants.

§ 1642. Causes transferred from Superior Court

The Court shall have jurisdiction to receive, hear, try and dispose of all such arguments, cases, matters and business as, by certificates of the Judges of the Superior Court, may be assigned or transferred to it by the Superior Court of Sussex County, pursuant to the rules of the Court made for that purpose, provided they come within the jurisdiction of the Court of Common Pleas, and also in cases where the parties in interest are entitled to a jury trial, provided they, in writing, filed with the Superior Court, waive jury trial.

§ 1643. General powers of Court

The Court of Common Pleas shall have all of the powers of a court of record possessed by the Superior Court of the State of Delaware, in the enforcement of its writs, rules and processes, the attendance of witnesses, the requiring of security for costs from non-resident plaintiffs, the production of documents, books and records and the production of all other necessary evidence.

Subchapter IV. Procedure

§ 1661. Commencement of civil action; complaint

(a) All civil actions in the Court, except actions of foreign attachment, shall be begun by filing a complaint.

(b) The form of the complaint shall conform to the rules of civil procedure of the Superior Court.

(c) Where the plaintiff's complaint is based upon a written contract or other writing, a copy thereof shall be annexed to the complaint or reason given for the failure so to do.

(d) The complaint may be filed by the plaintiff or his counsel.

(e) All complaints shall be signed by the plaintiff, plaintiff's agent or his attorney and shall be filed in duplicate.

§ 1662. Summons

The Court shall, upon the filing of the plaintiff's complaint, issue a summons under the seal of the Court requiring the defendant to appear and file an answer to plaintiff's complaint within ten (10) days after service of the statement upon him.

§ 1663. Answer, time for filing; contents

(a) The defendant shall file within ten (10) days of the service of the summons and a copy of the complaint upon him, an answer which shall consist of a series of numbered paragraphs corresponding to the paragraphs in the plaintiff's statement of claim and shall contain an admission or denial of each fact averred. 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 such facts as if they had been denied. All facts which the defendant does not deny or aver himself to be ignorant of and demand proof shall be deemed to be admitted.

(b) The answer may be filed by the defendant or his counsel.

(c) 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.

§ 1664. Reply; time for filing; contents

(d) If the defendant in his answer sets up new matter the plaintiff may, within five (5) days, reply to the new matter as set up in separately numbered paragraphs.

(e) All new matter which is averred in the defendant's answer not denied by the plaintiff, or of which he does not declare himself to be ignorant and demand proof, shall be deemed to be admitted.

(f) Upon the filing of the reply, the case shall be at issue.

§ 1665. Extension of time for filing pleadings and giving bonds

(g) 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 new matter.

(h) Whenever the last day for filing a complaint, an answer, a reply to new matter, for giving an appeal bond or a bond in foreign attachment cases, falls upon Sunday, or upon a legal holiday, such statement of claim, answer, or reply to new matter may be filed, and such appeal bond or foreign attachment bond may be given, on the next succeeding secular or business day.

§ 1666. Judgment on the pleadings; motions

(i) If the defendant defaults in filing an answer within ten (10) days from the service of the summons and plaintiff's complaint upon him, the plaintiff may take judgment against the defendant as of course.

() After the issue is joined by the pleadings, the plaintiff may move for judgment for want of a sufficient answer for all or a portion of the complaint.

§ 1667. Trial upon joinder of issue

When a case is at issue the Judge shall arrange the trial thereof as promptly as possible, and shall notify counsel with as little delay as possible.

§ 1668. Trial by jury

(a) All civil cases tried before the Court of Common Pleas shall be without jury, except

(b) Any party in interest may have a trial by jury to be chosen by the Judge of the Court, if the party desiring the jury trial gives security to pay for the expense incurred thereby.

(c) The jury shall consist of not more than five (5) members, as the party in interest asking for the jury trial requests and the verdict or finding of the majority of the jury shall be decisive.

() The jurors shall have like qualifications as jurors in the Superior Court.

§ 1669. Witness fees

(a) Witnesses attending the Court shall receive the sum of Two Dollars ($2.00) for each day in so attending and three cents ($.03) per mile going and returning.

(b) In civil cases all fees shall be taxed as a part of the costs of the proceedings and shall be paid to the persons entitled thereto when the costs are paid.

§ 1670. Judgments and executions

(a) All civil judgments rendered by the Court of Common Pleas shall be entered in a Judgment Docket, which shall be properly indexed. The judgment shall not constitute a lien upon real estate, but a transcript thereof may be filed in the office of the Prothonotary in and for Sussex County upon motion made in the Court of Common Pleas by the judgment creditor in the judgment and the Prothonotary shall enter in his Judgment Docket the names of the parties, the amount of the judgment, the name of the Court in which the judgment was recovered, the time from which interest runs, and the amount of the costs, with the true date of such filing and entry. The judgment, so transferred, shall, from that date, become and be a lien on all the real estate of the debtor in the county, in the same manner and as fully as judgments rendered in the Superior Court are liens, and may be executed and enforced in the same manner as judgments of the Superior Court. If any judgment is lawfully assigned to a joint debtor or surety, the assignee shall have the benefit of this section.

(b) Writs of execution for the seizure and sale of personal property based upon judgments obtained in the Court shall be issued in the manner provided by law for writs issuing out of the Prothonotary's office in Sussex County for the seizure and sale of personal property. The Court, if it deem it advisable so to do, may, by rule of the Court made for that purpose, change the method of procedure.

§ 1671. Foreign attachment

(a) A writ of foreign attachment may be issued out of the Court of Common Pleas in any action ex contractu or ex delicto against any person, firm or corporation upon praecipe and affidavit by the plaintiff or any other credible person and filed in the Court that the defendant resides out of the State, or is a corporation not created by or existing under the laws of this State and is justly indebted to the plaintiff in a sum not exceeding One Thousand Dollars ($1,000.00), exclusive of interest, to be specified in the affidavit. Where there are two or more defendants, one a resident of this State but without available means to pay the plaintiff's claim, that may be so stated in such affidavit and the attachment thereon may issue against the nonresident defendant, as if he were the only defendant in the cause. The plaintiff's statement of claim shall be filed within five (5) days from the issuance of the writ.

(b) In an attachment to be issued under this section, judgment may be given for the plaintiff at the expiration of sixty (60) days after service of the writ, unless the defendant has appeared and filed an answer, in which case like proceedings shall be had as in other suits commenced in the Court of Common Pleas. If the defendant in the attachment or any sufficient person for him, at any time after attachment gives security for the payment of any judgment that may be recovered in the proceedings, with costs, then the garnishees and all of the property attached shall be discharged and the attachment dissolved and like proceedings shall be had as in cases of foreign attachment in the Superior Court, in which the attachment has been dissolved by special bail. The security shall be approved and the form and amount thereof determined by the Judge of the Court of Common Pleas. Every writ issued under the provisions of this section shall have endorsed thereon by the plaintiff or his attorney, the amount of bail to be taken in such action and any officer of the Court taking bail in any proceedings under this section shall require the person going bail to justify in the amount so endorsed on the writ, unless the amount is reduced as in cases of foreign attachment in the Superior Court.

(c) Except as herein otherwise provided, the writ shall be framed, directed, executed and returned and like proceedings had as in cases of foreign attachment in the Superior Court, as provided in Chapter 35 of this title. Every plaintiff in a foreign attachment shall have the benefit of his own discovery, and after judgment may proceed by order of sale, fieri facias, capias ad satisfaciendum or otherwise as on other judgments.

§ 1672. Appeal and certiorari in civil actions

(a) From any order, rule, decision, or judgment of the Court in a civil action, the aggrieved party shall have the right of appeal to or certiorari from the Superior Court of Sussex County in the same manner as is provided by law as to causes tried before Justices of the Peace. No appeal shall be allowed from any order, rule, decision or judgment of the Court in any civil action unless the amount involved exceeds, exclusive of interest and costs, the sum of Two Hundred Dollars ($200.00).

() Any remedy by appeal, certiorari, writ of error, or otherwise from the judgment of the Superior Court shall be as though the cause had originated in the Superior Court.

Section 2. Title 11, Delaware Code of 1953, is amended by adding a new Chapter designated as Chapter 56, entitled "Court of Common Pleas for Sussex County" and by adding the necessary new sections beginning with § 5601, as follows:

§ 5601. Criminal procedure generally

(a) The proceedings in all criminal cases in the Court of Common Pleas for Sussex County shall be by information and without indictment by grand jury or trial by petit jury, with the right of appeal as provided in the 28th section of the 4th Article of the Constitution of the State of Delaware.

(b) The Court shall have the same authority at all times to receive pleas of guilty from persons charged with crimes, as is exercised by the Superior Court, and thereupon to impose sentence or probation, according to law, as fully as is now done by the Superior Court.

§ 5602. Election by accused to have case tried by Court when proceeding brought before Justice of the Peace

The accused, in all criminal cases where a Justice of the Peace in Sussex County has jurisdiction and power to hear and finally determine the matter, may elect to have the case tried by the Court of Common Pleas for Sussex County.

§ 5603. Contempt; issuance of process in aid of jurisdiction

The Court of Common Pleas for Sussex County may punish contempt and may issue all processes necessary for the exercise of its criminal jurisdiction, which process may be executed in any part of the State.

§ 5604. Bail and commitment upon election to trial by Court

(a) In all those cases where, by the provisions of § 5602

of this title, the accused may elect to be tried by the Court of Common Pleas for Sussex County, if the accused when brought before a Justice of the Peace for Sussex County, elects to be tried by the Court of Common Pleas for Sussex County,

Justice of the Peace shall hold such accused under sufficient bail for a hearing or for his appearance at the Court of Common Pleas.

(b) In default of bail, the person accused shall be committed to the custody of the Board of Trustees of the Sussex County Prison to await the session of the Court of Common Pleas.

(c) If the accused is unable to give sufficient bail, the Justice of the Peace may accept as a forfeit, conditioned upon the accused's appearance a sum of money equal in amount to the costs and maximum fine which could be imposed for such offense, or in lieu of such bail or forfeit may accept any article of sufficient value, which article may be sold for non-appearance in the manner provided by the rules of the Court of Common Pleas.

(d) All bail bonds, money deposits, articles accepted in lieu of bail or money, shall be turned over to the Clerk of the Court of Common Pleas, forthwith, together with an itemized statement of all costs which may have accrued up to that time, and the same shall be taxed as costs against the accused in any judgment or sentence which may be pronounced against such accused in the Court.

(e) When collected, the costs of the Justice of the Peace shall be paid by the Clerk to the Justice of the Peace.

(f) In all such cases of election like proceedings shall be had in the Court of Common Pleas as are had in cases originating in the Court.

§ 5605. Witness fees

(a) Witnesses attending the Court of Common Pleas for Sussex County in criminal cases shall receive the same fees as in other cases.

(b) In criminal cases fees shall be taxed as a part of the costs of such proceeding and shall be paid to the person entitled thereto when the costs are paid. In all criminal cases the County Treasurer shall, upon the production of a Certificate of Attendance under the hand of the Clerk, pay the fees for witnesses on behalf of the State, or on behalf of a person tried and acquitted in the Court.

Section 3. § 2701, Title 11, Delaware Code of 1953 is amended by adding a new subsection designated as subsection (h) as follows:

(h) The Court of Common Pleas for Sussex County shall have original jurisdiction to hear, try and finally determine all misdemeanors alleged to have been committed in Sussex County, except where jurisdiction over such offenses is vested exclusively in another Court. The jurisdiction conferred by this subsection includes concurrent jurisdiction with Justices of the Peace in all cases in which the Justices of the Peace have jurisdiction.

Approved July 8, 1953.