Frank v. Kempczynski

Superior Court of Delaware

Frank v. Kempczynski

90 A.2d 480, 47 Del. 251, 8 Terry 251, 1952 Del. Super. LEXIS 171

CourtSuperior Court of Delaware

DecidedJuly 1, 1952

DocketNo. 9

StatusPublished

Cited by1 cases

This text of 90 A.2d 480 (Frank v. Kempczynski) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frank v. Kempczynski, 90 A.2d 480, 47 Del. 251, 8 Terry 251, 1952 Del. Super. LEXIS 171 (Del. Ct. App. 1952).

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Opinion

Layton, J.:

Plaintiff was served with notice by defendant to appear for the taking of her deposition prior to trial. She did not appear. Her attorney stated on the record that he had advised her to appear but she had refused stating that she would appear but [252]*252once, on the day of trial when she would testify. Defendant has moved for a judgment by default in accordance with Rule 37 (a) of the Superior Court which is the same as the Federal Rule 37(d), 28 U.S. C.A.

The provisions of this rule do not seem to have been construed by the Federal Courts as mandatory. Moore’s Federal Practice, Vol. 4 § 37.04, P. 2808; Barron and Holtzoff, Federal Practice and Procedure, Vol. 2, § 855, P. 563; Madison v. Cobb, D. C., 29 F. Supp. 881; Dann v. Campagnie General Trans-Atlantique, Ltd., D. C., 29 F. Supp. 330; Producers Releasing Corporation DeCuba v. PRC Pictures, Inc., D. C., 8 F. R. D. 254.

In the exercise of my discretion, I direct that an order be submitted to me for signature commanding this plaintiff to appear not less than five days subsequent to the date of the order at a time and place to be designated therein for the purpose of having her deposition taken. If she does not comply fully therewith, the action will be dismissed.

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Layton, J.:

Plaintiff was served with notice by defendant to appear for the taking of her deposition prior to trial. She did not appear. Her attorney stated on the record that he had advised her to appear but she had refused stating that she would appear but [252]*252once, on the day of trial when she would testify. Defendant has moved for a judgment by default in accordance with Rule 37 (a) of the Superior Court which is the same as the Federal Rule 37(d), 28 U.S. C.A.

The provisions of this rule do not seem to have been construed by the Federal Courts as mandatory. Moore’s Federal Practice, Vol. 4 § 37.04, P. 2808; Barron and Holtzoff, Federal Practice and Procedure, Vol. 2, § 855, P. 563; Madison v. Cobb, D. C., 29 F. Supp. 881; Dann v. Campagnie General Trans-Atlantique, Ltd., D. C., 29 F. Supp. 330; Producers Releasing Corporation DeCuba v. PRC Pictures, Inc., D. C., 8 F. R. D. 254.

In the exercise of my discretion, I direct that an order be submitted to me for signature commanding this plaintiff to appear not less than five days subsequent to the date of the order at a time and place to be designated therein for the purpose of having her deposition taken. If she does not comply fully therewith, the action will be dismissed.

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Bluebook (online)

90 A.2d 480, 47 Del. 251, 8 Terry 251, 1952 Del. Super. LEXIS 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-v-kempczynski-delsuperct-1952.

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