CHAPTER 296

FORMERLY

SENATE BILL NO. 227

AS AMENDED BY SENATE AMENDMENT NO. 1 AND HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 39, TITLE 10 OF THE DELAWARE CODE RELATING TO PLEADING AND PRACTICE IN THE COURTS OF THE STATE OF DELAWARE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend §3901 of Title 10 by repealing said Section in its entirety and substituting in lieu thereof the following:

"§3901. Affidavits of Defense Judgments by Default on Written Instruments; Opening Judgments

(a) In all actions upon bills, notes. bonds, or other instruments of writings for the payment of money or for the recovery of book accounts, or foreign Judgments. and in all actions of scire facies 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 therefore, 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 one, any one or more of them shall, in such affidavit, specify the sum which he or they admits or admit to be due, and judgment shall be entered for the plaintiff at his 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 his complaint a copy of the instrument of writing, book entries, or claims, or in case of a scire facies, 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 51738 of Title 28 of the United States Code.

(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.

(o) Upon any Judgment under this Section a stay of execution for 6 month 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 cue of a suit by or against a corporation. the affidavit by the cashier or treasurer shall be sufficient in this Section, In cue 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 (a) 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, lf special bail is not given at the term to which the process is returnable, the plaintiff may, at his election, on the last day of the term, cause a common appearance to be entered for the defendant, and move for Judgment, under the provisions of this section. in like manner as if special bail had been given.

(h) The amount of a Judgment by virus 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."

"§3914. Partnership, Proof of

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 ben of his knowledge and belief, whether there is any partnership in relation to the subject matter of the action, and who arc the partners therein. Where plaintiff has complied with this section, failure of any defendant to file an affidavit with his answer shall be deemed an admission of the partnership as alleged."

Section 3. Amend §3915, Chapter 39 of title 10 by repealing said Section in its entirety and substituting in lieu thereof the following:

"§3915. Inc ration or Corporate Existence. Proof of

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."

Section 4. Amend §3916, Chapter 39 of Title 10 by repealing said Section in its entirety and substituting in lieu thereof the following:

"§39I6. Agency in Operation of Motor Vehicle. Proof of

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 occurence 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 his 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 his answer shall be deemed an admission that the operator of the vehicle was a servant, agent or employee of the defendant."

Section 5. Amend §3917, Chapter 39 of Title 10 by repealing said Section in its entirety and substituting in lieu thereof the following:

"§3917. Signatures in Actions or Written Instruments, Proof of

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 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 his signature appears on the instrument. Where plaintiff has complied with this section, failure of any defendant to file an affidavit with his answer shall be deemed an admission of the signature as alleged."

Section 6. This Act shall apply to all civil actions filed on or after the effective date In all Courts of the State of Delaware having Jurisdiction to hear, try and finally determine civil actions where the amount in controversy exceeds 52,S00.

Section 7 The provisions of this Act arc severable.and if any phrase, clause, sentence or provision of this Act or the application of such phrase, clause, sentence or provision shall be held invalid. the remainder of this Act. and the application of the provision or provisions to persons or circumstances other than those to which it was held invalid or inconsistent shall not be affected thereby.

Section 8 This Act shall be effective on the thirtieth day following its enactment.

Approved June 23, 1986.