CHAPTER 240

AN ACT AMENDING CHAPTERS 13, 15 AND 16 OF TITLE 10, AND CHAPTER 53 OF TITLE 11, DELAWARE CODE OF 1953, RELATING TO THE JUDGES, JURISDICTION, POWERS AND PROCEDURES OF THE COURTS OF COMMON PLEAS FOR NEW CASTLE, KENT AND SUSSEX COUNTIES AND PROVIDING FOR THE TRANSFER OF CERTAIN CASES TO AND FROM SUPERIOR COURT.

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

Section 1. Section 1302 of Title 10, Delaware Code of 1953, is hereby repealed and the following new § 1302 is enacted in lieu thereof :

§ 1302. Appointment of judges; terms; eligibility; salary

(a) The Governor shall, with the approval of the Senate, appoint and commission two Judges, each for a term of twelve years and each of whom shall be qualified to hold and preside over the Court of Common Pleas for New Castle County. Both Judges shall not be appointed from the membership of the same political party.

() No person shall be eligible to hold the office of Judge of the Court of Common Pleas for New Castle County unless he is a person learned in the law, has been in good standing as a practicing attorney in the Supreme Court of the State of Delaware for at least five years preceding his appointment, and is a resident of New Castle County.

() The Judges of such Court shall each receive an annual salary of $21,000 payable by the State.

() No Judge of such Court shall, after assuming his duties, Section 2. Section 1305 of Title 10, Delaware Code of 1953, practice law during his term of office.

is hereby repealed and the following new § 1305 is enacted in lieu thereof :

§ 1305. Temporary assignment of Judges

(a) In the event the Judges of the Court of Common Pleas for New Castle County are both disabled, disqualified or unable for any cause to preside over the Court, the President Judge of the Superior Court shall thereupon assign one of the Judges of the Superior Court of the State of Delaware, to sit in and hold the Court of Common Pleas for New Castle County during the absence, disability or disqualification of both Judges thereof.

(b) Upon written request therefor made by a Judge of the Court of Common Pleas for New Castle County, the President Judge of the Superior Court may designate and assign one of the Judges of the Superior Court, to sit in the Court of Common Pleas for New Castle County to hear and decide such causes therein and for such period of time as said President Judge may designate.

(c) In any of the cases provided for in this section, it shall be the duty of the Judge so designated to serve according to such designation as a Judge of the Court of Common Pleas for New Castle County.

Section 3. Section 1326 of Title 10, Delaware Code of 1953, is hereby amended by repealing subsection (a) thereof and inserting the following new subsection (a) in lieu thereof :

(a) The writs, rules and processes of the Court shall be served and executed by any constable 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 police officers of the City of Wilmington or New Castle County and officers of the State Police.

Section 4. Section 1341 of Title 10, Delaware Code of 1953, is hereby amended by striking the figure "$1,000" from each place it appears in said section and inserting the figure "$2,500" in lieu thereof in each place and subsection (d) of said § 1341 is further amended to read as follows :

(d) The Court shall have and may exercise the same jurisdiction and powers in all civil actions as is vested in Justices of the Peace of the State, including the jurisdiction and power to have its writs, rules, subpoenas and other processes served and enforced in any county of the State.

Section 5. Section 1342 of Title 10, Delaware Code of 1953, is amended by repealing subsections (a) and (c) thereof and the following new subsections (a) and (c) are enacted in lieu thereof :

(a) The Court shall have jurisdiction to receive, hear, try and dispose of all civil actions which by certificate of a Judge of the Superior Court for New Castle County may be transferred to it pursuant to rules of the Court and of Superior Court made for that purpose. Civil actions transferred to the Court shall include only those matters as to which the Court would have original jurisdiction under this chapter, but may include cases where the parties in interest are entitled to a jury trial if such jury trial has been waived.

(c) Upon transfer of an action to the Court pursuant to this section, the Prothonotary shall forthwith transmit all records in the matter and pay over to the Clerk of the Court the balance of any deposit held which exceeds the amount of Superior Court costs. Proceedings shall thereupon continue as though the action had been commenced in the Court of Common Pleas.

Section 6. Sections 1368 and 1372 of Title 10, Delaware Code of 1953, are hereby repealed and the following new sections 1361, 1362 and 1363 are enacted in lieu thereof :

§ 1361. Trial without jury or referees

(a) All cases tried before the Court shall be without a jury or referees.

(b) Every person who commences a civil action in this Court shall, by virtue of such commencement, be deemed to have waived any right to trial by jury of the issues to which such person's original pleading is directed.

§ 1362. Demand for jury trial; waiver; removal to Superior Court

(a) Except as otherwise provided in Section 1361, any party may demand a trial by jury of an issue triable of right by a jury serving upon the other parties a demand therefor in writing and depositing with the Clerk of the Court the amount necessary for the commencement of an action in Superior Court. Such demand shall be served and filed, and the necessary amount deposited with the Clerk, not later than 5 days after the service of the last pleading directed to such issue. The demand for jury trial may be endorsed upon a pleading of the party, provided it is typed or written on the first page of the pleading immediately following the caption of the case.

(b) The failure of a party to serve and file a demand for trial by jury or to deposit the necessary amount in accordance with the requirements of this section constitutes a waiver by him of trial by jury.

(c) Upon demand for trial by jury as provided in this section, the Clerk of the Court shall forthwith transmit all records in the matter and the amount necessary for commencement of an action in Superior Court to the Prothonotary of New Castle County. Following such removal, proceedings shall continue as though the action had been commenced in Superior Court.

§ 1363. Record

A stenographic record shall be kept of all evidence taken in the Court of Common Pleas.

Section 7. Section 1373 of Title 10, Delaware Code of 1953, is hereby repealed and the following new Section 1373 is enacted in lieu thereof :

§ 1373. Appeal in civil actions

From any order, rule, decision, or judgment of the Court in a civil action, the aggrieved party shall have the right of appeal to the Superior Court of New Castle County in the same manner as is provided by law as to causes tried before justices of the peace, except that appeals to the Superior Court shall be

reviewed on the record and shall not be tried de novo. The Superior Court shall have power to make rules to carry the provisions of this section into effect.

Section 8. Sections 1304, 1321, 1323, 1324, 1325 and 1343 of Title 10, Delaware Code of 1953, are hereby amended by substituting the word "Judges" for the word "Judge" wherever the latter word appears in said sections.

Section 9. Section 1506 of Title 10, Delaware Code of 1953, is hereby amended to read as follows:

§ 1506. Temporary assignment of Judges

(a) In the event the Judge of the Court of Common Pleas for Kent County shall be disabled, disqualified or unable for any other reason to preside over said Court at any time, the President Judge of the Superior Court, after notice thereof, shall thereupon designate and assign one of the Judges of the Superior Court, to sit in and hold said Court of Common Pleas during the disability, disqualification or absence of the Judge thereof.

(a) Upon written request therefor made by the Judge of the Court of Common Pleas for Kent County, the President Judge of the Superior Court may designate and assign one of the Judges of the Superior Court, to sit in said Court of Common Pleas to hear and decide such causes therein and for such period of time as said President Judge shall designate.

(b) In any of the cases provided for in this section, it shall be the duty of the Judge so designated to serve according to such designation as a Judge of the Court of Common Pleas for Kent County.

Section 10* Section 1541 of Title 10, Delaware Code of 1953, is hereby amended by repealing subsection (d) thereof and inserting the following subsection (d) therein :

(c) The Court shall have and may exercise the same jurisdiction and powers in all civil actions as is vested in Justices of the Peace of the State, including the jurisdiction and power

to have its writs, rules, subpoenas and other processes served and enforced in any county of the State.

Section 11. Section 1606 of Title 10, Delaware Code of 1953, is hereby amended to read as follows

§ 1606. Temporary assignment of Judges

(a) In the event the Judge of the Court of Common Pleas for Sussex County shall be disabled, disqualified or unable for any other reason to preside over said Court at any time, the President Judge of the Superior Court, after notice thereof, shall thereupon designate and assign one of the Judges of the Superior Court, to sit in and hold said Court of Common Pleas during the disability, disqualification or absence of the Judge thereof.

(b) Upon written request therefor made by the Judge of the Court of Common Pleas for Sussex County, the President Judge of the Superior Court may designate and assign one of the Judges of the Superior Court, to sit in said Court of Common Pleas to hear and decide such causes therein and for such period of time as said President Judge shall designate.

() In any of the cases provided for in this section, it shall be the duty of the Judge so designated to serve according to such designation as a Judge of the Court of Common Pleas for Sussex County.

Section 12. Section 1641 of Title 10, Delaware Code of 1953, is hereby amended by repealing subsection (d) thereof and inserting the following new subsection (d) therein :

(a) The Court shall have and may exercise the same jurisdiction and powers in all civil actions as is vested in Justices of the Peace of the State, including the jurisdiction and power to have its writs, rules, subpoenas and other processes served and enforced in any county of the State.

Section 13. Section 5301 of Title 11, Delaware Code of 1953, is hereby repealed and the following new Section 5301 is enacted in lieu thereof :

§ 5301. Criminal procedure generally; transfers to Superior Court

(a) The proceedings in all criminal cases in the Court of Common Pleas for New Castle County shall be by information and without indictment by grand jury or trial by petit jury. From any order, rule, decision, judgment or sentence of the Court in a criminal action, the accused shall have the right of appeal to Superior Court of New Castle County. Such appeals to the Superior Court shall be reviewed on the record and shall not be tried de novo.

() The Court shall have, except as limited by subsection (c), the power to receive pleas of guilty from persons charged with misdemeanors and to impose sentence or probation according to law, as fully as is now done by the Superior Court.

(a) In all cases in which the sentence, in the event of conviction, may by law be imprisonment exceeding one month or a fine exceeding $100, the Court shall upon arraignment and before accepting any plea advise the accused that he has a right to trial by jury in such case. If the accused, in writing, waives his right to jury trial in such case, his plea may be accepted by the Court. If the accused does *not so waive his right to jury trial, his plea shall not be accepted, but the case and all records of the Court pertaining thereto shall be transferred to Superior Court and the case shall thereupon continue, upon information and without indictment, according to the same procedures applicable to cases originating in Superior Court.

(b) Superior Court shall have power to make appropriate rules to carry the provisions of this section into effect.

Section 14. This law shall take effect February 1, 1969, except as follows :

(a) The provisions of Sections 6 and 7 shall not apply with respect to civil actions commenced in the Court of Common Pleas for New Castle County prior to the effective date of this law.

(b) The provisions of Section 13 shall not apply with respect to cases in which the accused has been arraigned and en-

tered to plea prior to the effective date of this law.

(c) The provisions of Section 1 shall not apply with respect to the judges currently serving as Judges of the Court of Common Pleas for New Castle County until March 1, 1971, unless, after the effective date hereof, they elect to come under the terms of Section 1.

Approved January 10, 1968.