Wiener v. Wiener

Superior Court of Delaware

Wiener v. Wiener

83 A.2d 749, 46 Del. 343, 1951 Del. Super. LEXIS 117

CourtSuperior Court of Delaware

DecidedOctober 25, 1951

DocketCivil Action No. 535

StatusPublished

Cited by1 cases

This text of 83 A.2d 749 (Wiener v. Wiener) 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

Wiener v. Wiener, 83 A.2d 749, 46 Del. 343, 1951 Del. Super. LEXIS 117 (Del. Ct. App. 1951).

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Opinion

*344 Layton, J.,

delivering the opinion of the Court:

Prior to the adoption of the new Rules of the Superior Court, it was the practice that where the defense to a divorce action was to consist of no more than a general denial of the allegations of the petition, no answer need be filed. Otherwise, a formal answer was required. 2 Wooley, Delaware Practice, Sec. 1636; Banks v. Banks, 6 Penn. 442, 67 A. 835; Bancroft v. Bancroft, 4 Boyce 9, 85 A. 561; Palese v. Palese, 6 Boyce 584, 101 A. 438. In our opinion, Rule; 104 has changed this practice and requires the filing of an answer in every case where defendant desires to defend and this is so whether the defense consists of a general denial or contains matter sounding in confession and avoidance, or both.

However, in view of the fact that this is the first interpretation of Rule 104 by this court, we think that defendant should be permitted to file an answer and be let into trial subject, nevertheless, to plaintiff’s right to move for a continuance should the answer raise a defense or defenses which he may be unprepared to meet. This ruling is clearly within the court’s discretionary power. Rule 6(b).

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*344 Layton, J.,

delivering the opinion of the Court:

Prior to the adoption of the new Rules of the Superior Court, it was the practice that where the defense to a divorce action was to consist of no more than a general denial of the allegations of the petition, no answer need be filed. Otherwise, a formal answer was required. 2 Wooley, Delaware Practice, Sec. 1636; Banks v. Banks, 6 Penn. 442, 67 A. 835; Bancroft v. Bancroft, 4 Boyce 9, 85 A. 561; Palese v. Palese, 6 Boyce 584, 101 A. 438. In our opinion, Rule; 104 has changed this practice and requires the filing of an answer in every case where defendant desires to defend and this is so whether the defense consists of a general denial or contains matter sounding in confession and avoidance, or both.

However, in view of the fact that this is the first interpretation of Rule 104 by this court, we think that defendant should be permitted to file an answer and be let into trial subject, nevertheless, to plaintiff’s right to move for a continuance should the answer raise a defense or defenses which he may be unprepared to meet. This ruling is clearly within the court’s discretionary power. Rule 6(b).

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Bluebook (online)

83 A.2d 749, 46 Del. 343, 1951 Del. Super. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiener-v-wiener-delsuperct-1951.

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