COURT OF COMMON PLEAS
AN ACT creating a Court of Common Pleas for Kent County.
Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met (two-thirds of all the members elected to each branch thereof concurring therein):
SECTION I. That from and after the passage of this Act there shall be, and there hereby is, created for Kent County a Court to be known as "The Court of Common Pleas created for Kent County."
SECTION 2. This Court shall be composed of, be in charge of and be presided over by one Judge who shall be appointed and who shall serve as hereinafter provided.
Upon the passage and approval of this Act the Governor of the State of Delaware shall appoint and commission a Judge who shall hold office for a term of four years and who shall have power and authority to hold and preside over the Court of Common Pleas for Kent County. No person shall be eligible to the office of Judge of The Court of Qualifications Common Pleas for Kent County unless he be a person learned in the law and of good standing as a practicing attorney in the Superior Court of the State of Delaware, and a resident of Kent County. In the event the said Judge of the Court of Common Pleas for Kent County shall be unable for any cause to preside over said Court, said Judge shall notify the Chief 'judge Justice of the State of Delaware, who shall thereupon assign one of the Judges of the Superior Court of the State of Delaware to hold said Court of Common Pleas during the absence of the said Judge.
SECTION 3. The Judge of the said Court of Common Pleas for Kent County shall receive for his salary or compensation the sum of Three Thousand Six Hundred Dollars ($3,600.00) per year, payable monthly by the State Treasurer out of the General Funds of the State.
SECTION 4. The said Court of Common Pleas shall hold its first term of Court on the first Monday in May, A. D. 1931, and it shall thereafter hold Court and establish such terms as public business may require and as shall be provided for by the rules adopted for the said Court.
SECTION 5. The said Court shall be held in the City Dover of Dover, and it shall be the duty of the Levy Court of Levy Court to Kent County, and the same is hereby authorized and directed, to provide some suitable place in the Kent County supplies Court House, or such other place as the said Levy Court shall provide, for the holding of said Court of Common Pleas. All expenses of said Court for books, records, writs and other papers necessary for the said court shall be paid by the Levy Court of Kent County upon bill presented to the same, verified by the Judge of said .Court of Common Pleas.
SECTION 6. The Judge of said Court, by and with adopted wit consent of the consent and advice of the Superior Court of the State Superior Court of Delaware, shall have full power for and on behalf of the said Court of Common Pleas for Kent County to adopt a seal, to make and publish general rules regulating the practice and procedure therein and the keeping of its records, including a schedule of costs and fees, and providing for such deposits as may be deemed necessary, and subject to the provisions of this Act, said Court of Common Pleas shall have all the powers of a Court of record possessed by the Superior Court of the State of Delaware.
SECTION 7. The Judge of the Court of Common Pleas for Kent County shall appoint a Clerk for said Court, and such other officer or officers as he shall deem necessary to perform the business of the said Court of Common Pleas, which said Clerk or other officer or officers shall hold office at the pleasure of the said Judge and shall receive such salary or salaries as may be fixed from time to time by the Judge of the said Court of Common Pleas ; provided, however, that the combined salary or salaries of such Clerk or other officer or officers shall not exceed in the aggregate in any one year the aim of Eighteen Hundred Dollars ($1800.00). The salary of said Clerk shall be paid in equal monthly installments by the Levy Court of Kent County and the salary or compensation of such other officer or officers of the said Court shall be paid by the Levy Court of Kent County upon presentation of bills for the same, which shall be approved by the Judge of said Court.
The Clerk of the Court of Common Pleas for Kent County shall have the care of the records of said Court and the records of all proceedings had before the Judge of said Court, and he shall receive all fees, fines and costs arising out of any proceedings had in said Court, or before said Judge, and shall pay the same over as hereinafter pro- vided. He shall, before entering upon the duties of said office, give bond to the State of Delaware 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, said bond to be approved by the Judge of said Court; and should said Clerk so appointed fail to give bond as required within ten days from the date of his appointment, the Judge of said Court shall make a new appointment. The said 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 of the said Court. He shall issue all process under his hand and the seal of the Court, and teste the same in the name of the Judge, signing such process by his title of office, and shall tax costs.
The said clerk may issue warrants upon complaint filed in writing, and under oath, in all cases to be returnable before the Judge of the Court of Common Pleas for Kent County. 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 for in Section 17 of this Act. He shall perform such other duties as shall be assigned to him from time to time by the Judge of said Court. In case of sickness, absence or inability of the Clerk of said Court, the Judge thereof may appoint a Deputy Clerk to serve in said absence, who shall have the same powers and duties as the Clerk.
SECTION 8. The writs, rules and processes of said Court of Common Pleas shall be served and executed by any Constable for Kent County now authorized by law to serve general process. Any such Constable, making any arrest, serving any writs, rules, processes or warrants, or otherwise serving said Court, shall receive the same fees as are Constable now allowed by law to such Constable for such service performed on writs issued by a Justice of the Peace, except as to mileage, which shall be allowed at the rate of ten cents (10c) per mile going and returning from any such service.
The fees and mileage provided for in this Section of this Act shall be taxed as a part of the costs of such proceeding, and shall be paid by the Clerk of the said Court to such Constable when said costs are paid ; provided, however, that in all criminal actions brought before said Court of Common Pleas, such fees and mileage charges, if the costs are not paid by the defendant in such proceeding, shall be paid by the Levy Court of Kent County upon bills presented therefore, which shall have been approved by the Judge of said Court of Common Pleas.
SECTION 9. The Court of Common Pleas shall have laws of all of the powers of a Court of Record possessed by the Superior Court, and the Court of General Sessions of the State of Delaware, in the enforcement of its writs, rules and processes, the attendance of witnesses, the production of documents, books and records and the production of all other necessary evidence.
Witnesses attending said Court shall receive the sum of One Dollar ($1.00) for each day in so attending and three cents (3c) per mile going and returning.
In civil cases all fees shall be taxed as a part of the costs of the proceeding and shall be paid to the persons entitled thereto when the costs are paid.
In criminal cases fees shall be taxed as a part of the costs of such proceeding and shall be paid to the person so entitled thereto when the costs are paid; provided, however, that in all criminal cases the County Treasurer shall, upon the production of a Certificate of Attendance under the hand of the Clerk of the Court of Common Pleas, pay the fees for witnesses on behalf of the State, or on behalf of a person tried and acquited in the Court of Common Pleas for Kent County.
SECTION 10. The fees, fines, costs or other sums of money received by the Clerk of said Court, Constable or other officer of said Court shall be paid to the County Treasurer of Kent County, except as in this Act is otherwise pro- vided, and also except fines and penalties which under any law of the State of Delaware are required to be paid other- wise, and excepting also payments received towards the satisfaction of any judgment of said Court, or in pursuance to any rule of said Court, which sum so received shall be paid unto said Court, and be subject to the order of said Court.
SECTION 11. The said Court shall have concurrent jurisdiction in Kent 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, shall not exceed the sum of One Thousand Dollars ($1000.00). Amount The amount claimed by the plaintiff, where the said claim is for a sum certain and not in excess of One Thousand Dollars ($1000.00), exclusive of interest, shall be conclusive as to jurisdiction of the said Court. In all actions at law, whether ex contractu or ex delicto, not involving any sum certain, the plaintiff shall file with his statement of the Certificate as cause, a certificate as to the amount of damages claimed or to amount of damages as the value of the thing or matter in controversy, which conclusive to jurisdiction statement shall be conclusive as to the jurisdiction of the said Court.
The said Court shall have jurisdiction, power and authority to receive, hear, try and dispose of all such arguments, cases, matters and business as, by certificates of the Judges of the Superior Court or Court of General Sessions, transferred by certificate from other may be assigned or transferred to it by the Superior Court or the Court of General Sessions of Kent County, pursuant to the rules of said Courts made for that purpose, provided the same come within the jurisdiction of the said Court of Common Pleas, and also in cases where the parties in interest are entitled to a jury trial, provided they, in writing, entitled filed with said Superior Court or the Court of General Sessions, wave said jury trial.
SECTION 12. A writ of Foreign Attachment may be issued out of said Court of Common Pleas in any action ex contractu or ex delicto against any person, firm or corporation, upon affidavit by the plaintiff or any other credible person and filed in said Court of Common Pleas, 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 said plaintiff in a sum not exceeding One Thousand Dollars ($1000.00), to be specified in said affidavit, and 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 non-resident defendant or defendants, as if he or they were the only defendant or defendants in the cause.
In an attachment to be issued under this Section, judgment may be given for the plaintiff at the expiration of sixty days after service of the writ, unless the defendant shall have appeared and filed an answer, in which case like proceedings shall be had as in other suits commenced in said Court of Common Pleas; and provided further, that if the defendant in the attachment or any sufficient person for him, shall at any time after attachment give security for the payment of any judgment that may be recovered in said proceedings, with costs, then the garnishees and all of the property attached shall be discharged and the attachment dissolved and like proceedings be had as in cases of foreign attachment in the Superior Court, in which the attachment has been dissolved by special bail. Such security shall be approved and the form and amount thereof determined by any judge entitled to sit in the Court of Common Pleas. Every such 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 said writ, unless said amount shall be reduced as in cases of foreign attachment in the Superior Court.
Except as herein otherwise provided, the said writ shall be framed, directed, executed and returned and like proceedings had as in cases of domestic attachment, as provided in Chapter 126 of the Revised code of Delaware, except as to the appointment of auditors and distribution among creditors ; for every plaintiff in a foreign attachment shall have the benefit of his own discovery, and after judgment may proceed by order of sale, fiere facias, capias ad satisfaciendum or otherwise as on other judgments.
The said Court of Common Pleas for Kent County shall also have and may exercise the same jurisdiction and powers in all civil actions as is now or may hereafter be vested in Justices of the Peace for Kent County.
SECTION 13. All civil actions in said Court shall be begun by filing a statement of the plaintiff's claim without the issuance of any formal writ. The said statements shall Statements consist of a concise recital of the facts which the plaintiff claims gives rise to his cause of action, divided into paragraphs, consecutively numbered, as is now the practice in bills filed in the Court of Chancery. Only one averment of fact shall, as far as possible, be included in one paragraph. Where the plaintiff's claim is based upon a written contract or by other writing, a copy thereof shall be annexed to the statement of claim or reason given for the failure so to do. This statement may be filed by the plaintiff or his counsel. All statements shall be verified by the affidavit of the plaintiff or some responsible person for him, excepting counsel, and shall be signed by the plaintiff or his counsel, and shall be filed in duplicate.
The said Court of Common Pleas shall thereupon issue a summons under the seal of the Court, requiring the defendant to appear and file an answer to the plaintiff's claim within ten days after service of the statement upon him. In default of the filing of an answer within ten days the plaintiff may take judgment against the defendant as of course. In order to prevent judgment as aforesaid, the defendant answer must file within ten days of the service of the summons and statement upon him as aforesaid, an answer which shall consist of a series of numbered paragraphs corresponding to the paragraphs in the plaintiff's statement of his claim and shall contain an admission or denial of each fact averred, provided that if the defendant alleges himself to be ignorant as to the facts averred in any paragraph, he may so state and place the plaintiff under proof of the same as if they had been denied. All facts which the defendant does not deny or aver himself to be ignorant of and demand proof as aforesaid, shall be deemed to be admitted. The answer may be filed by the defendant or his counsel. All answers shall be verified by the affidavit of the defendant or some responsible person for him, excepting counsel, and shall be case at Issue, signed by the defendant or his counsel. If the defendant has filed an answer, the case shall be at issue without any formal Plaintiff's reply pleas unless he sets up new matter in separately numbered paragraphs in addition to those answering plaintiff's averments; in which cases plaintiff may, within five days, reply to the new matter as set up in the same manner and all new matter so averred and not denied by plaintiff, or of which he does not declare himself to be ignorant and demand proof, shall be deemed to be admitted. The case shall then be at issue. Plaintiff may move for judgment for want of a sufficient answer for all or a portion of the claim. When a case is at issue it shall be the duty of the Judge of said Court to Trial arrange the trial thereof as promptly as possible, and notify counsel with as little delay as possible.
SECTION 14. All civil judgments rendered by said Court of Common Pleas shall be entered in a Judgment Docket, which shall be properly indexed. Said judgment When shall not constitute a lien upon real estate, but a transcript Judgment becomes Lien thereof may be filed in the office of the Prothonotary in and on Real Estate for Kent County upon motion made in said Court of Common Pleas by the judgment creditor in said judgment. Writs of Writs of execution for the seizure and sale of personal execution for seizure and property based upon judgments obtained in said Court shall sale of personal property be issued in the same manner as is now provided by law for Writs issuing out of the Prothonotary's office in Kent County for the seizure and sale of personal property; provided, however, that said Court, if it deem it advisable so to do, may, by rule of said Court made for that purpose, change said method of procedure.
SECTION 15. All civil cases tried before said Court Jury of Common Pleas shall be without Jury; provided, however, any party in interest may have a trial by jury to be chosen by the Judge of said Court, if the party desiring the same shall designate his or her preference before the trial. The Jury shall consist of five members of like qualifications as jurors in the Superior Court.
SECTION 16. From any order, rule, decision or judgment of the Court of Common Pleas for Kent County, the aggrieved party shall have the right of appeal to or certiorari from the Superior Court of Kent County in the same manner as is now provided by law as to causes tried before Justices of the Peace. Provided, however, that no appeal shall be allowed from any order, rule, decision or judgment of said Court in any civil action unless the same shall, exclusive of interest and costs, exceed the sum of Two Hundred Dollars ($200.00).
Any remedy by appeal, certiorari, writ of error, or otherwise from the judgment of said Superior Court shall be as now provided by law, and as though said cause had originated in said Superior Court.
SECTION 17. The Court of Common Pleas for Kent County shall have and may exercise jurisdiction of all those criminal matters and offenses enumerated in the 30th Section of the 4th Article of the Constitution of the State of Delaware, and committed within Kent County, and to punish all persons convicted of said offenses or any of them, agreeable to the laws of the State of Delaware.
The Court of Common Pleas for Kent County shall also have concurrent jurisdiction to hear, try and determine the following offenses, when committed within Kent County:
Obstructing or throwing glass upon the Highway, as provided in 3582, Sec. 147 of the Revised Code of the State of Delaware, as amended;
Bill Posting without property owner's consent, as provided in 3487, Sec. 52 of the Revised Code of the State of Delaware, as amended;
Keeping or being concerned in interest in keeping Gaming tables or devices, as provided in 3568, Sec. 133 of the Revised Code of the State of Delaware, as amended;
Contest of skill, speed or power of endurance;
Keeping books or devices for recording bets or wagers, as provided in 3572, Sec. 137 of the Revised Code of the State of Delaware, as amended;
Permitting minors to be present at Games of Chance, as provided in 3573, Sec. 138 of the Revised Code of the State of Delaware, as amended;
The use of slot machines, as provided in 3574, Sec. 139 of the Revised Code of the State of Delaware, as amended;
Granting temporary support order as provided in 3036, Sec. 4 of the Revised Code of the State of Delaware, as amended;
Regulating the use of milk receptacles, as provided in 3594, Sec. 159 of the Revised Code of the State of Delaware, as amended;
Regulating aerial navigation, as provided in Chapter 249 Volume 36 Laws of Delaware; Licensing air-men and air-craft, as provided in Chapter 249 Volume 36, Laws of Delaware;
Threatening to kill or wound another or to injure him in person or estate;
All charges of the Breach of the Peace.
The Court of Common Pleas for Kent County shall also have and may exercise the same jurisdiction and powers in criminal matters as is now or may hereafter be vested in tags Peace Justices of the Peace for Kent County; provided, however, that the accused, in all cases where the Justice of the Peace now has jurisdiction and power to hear and finally determine the matter, shall have the right to elect to have the case Court tried by the Court of Common Pleas for Kent County, and it shall be the duty of every Justice of the Peace for Kent Duty Justice of County, and the officer making the arrest to advise such accused of his right to so elect, and every officer making the arrest and every Justice of the Peace for Kent County is elect hereby required to so advise the accused before the said Justice of the Peace shall have jurisdiction and power to try the case.
In all those cases where, by the provisions of this Act, the accused has the right to elect to be tried by the Court of Common Pleas for Kent County, if the accused when brought before a Justice of the Peace for Kent County, shall elect to be tried by the Court of Common Pleas for Kent County, the Justice of the Peace shall hold such accused under sufficient bail for a hearing or for his appearance at said Court of Common Pleas, and in default of bail, the person accused shall be committed to the custody of the Sheriff of Kent County to await the session of the said Court of Common Pleas; provided, however, 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 as aforesaid, a sum of money equal in amount to accepted 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 Bail bonds, said Court of Common Pleas. All bail bonds, money deposits, or articles accepted in lieu of bail or money, shall be turned over to the Clerk of the Court of Common Pleas of Kent County 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 Costs accrued judgment or sentence which may be pronounced against such accused in the said Court of Common Pleas, and when collected, the costs of said Justice of the Peace shall be paid by the Clerk of said Court of Common Pleas to said Justice of the Peace.
The said Court shall have authority to punish contempt and to issue all processes necessary for the exercise of its criminal jurisdiction, which process may be executed in any part of the State.
The proceedings in all criminal cases in the said Court Criminal Cases without of Common Pleas for Kent County shall be without indictment by Grand Jury, or trial by petit jury, with the right of appeal as provided in the 30th Section of the 4th Article of the Constitution of the State of Delaware.
SECTION 18. The invalidity of any Section or part thereof of this Act shall not affect the validity of any other Section or part thereof, which can be given effect without such invalid part.
Approved May 13, 1931.