State ex rel. Kinder v. Beach

Superior Court of Delaware

State ex rel. Kinder v. Beach

103 A. 353, 30 Del. 101, 7 Boyce 101, 1918 Del. LEXIS 22

CourtSuperior Court of Delaware

DecidedApril 9, 1918

DocketSummons Debt, No. 7

StatusPublished

This text of 103 A. 353 (State ex rel. Kinder v. Beach) 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

State ex rel. Kinder v. Beach, 103 A. 353, 30 Del. 101, 7 Boyce 101, 1918 Del. LEXIS 22 (Del. Ct. App. 1918).

Pincite

Opinion

Pennbwill, C. J.:

It is admitted that the granting of defendant’s motion is within the discretion of the court, and this is entirely consistent with the statute, which says that the affidavit must be filed with the plea, “or within such further time as the court shall on motion allow.’’

[102]*102In order to promote the trial of cases upon their merits the court are disposed to construe the statute liberally, and permit the filing of the affidavit after the plea is filed, unless it would place the plaintiff at a disadvantage at the trial. If it appears to the court that the plaintiff is unprepared to prove the signature because of defendant’s failure to file the affidavits with his plea, and has not time before the trial to secure such evidence, the court may continue the case on plaintiff’s application, and, if it is deemed proper, impose upon the defendant the costs of the term.

Motion allowed.

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Pennbwill, C. J.:

It is admitted that the granting of defendant’s motion is within the discretion of the court, and this is entirely consistent with the statute, which says that the affidavit must be filed with the plea, “or within such further time as the court shall on motion allow.’’

[102]*102In order to promote the trial of cases upon their merits the court are disposed to construe the statute liberally, and permit the filing of the affidavit after the plea is filed, unless it would place the plaintiff at a disadvantage at the trial. If it appears to the court that the plaintiff is unprepared to prove the signature because of defendant’s failure to file the affidavits with his plea, and has not time before the trial to secure such evidence, the court may continue the case on plaintiff’s application, and, if it is deemed proper, impose upon the defendant the costs of the term.

Motion allowed.

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Bluebook (online)

103 A. 353, 30 Del. 101, 7 Boyce 101, 1918 Del. LEXIS 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-kinder-v-beach-delsuperct-1918.