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State ex rel. Mitchell v. Wolcott

Supreme Court of Delaware

May 8, 1951

STATE ex rel. MITCHELL et al.
v.
WOLCOTT et al.

Original proceeding by the State of Delaware on the relation of Leroy M. Mitchell and others against Deniel F. Wolcott and James B. Carey, associate judges of the Superior Court of the State of Delaware at large and for Sussex County constituting the Board of Canvass in and for Sussex County, Delaware, for a peremptory writ of mandamus directed to respondents, commanding them to reconvene the Superior Court in and for Sussex County and publicly ascertain the state of election held on November 7, 1950. Granville C. Boyce and others were permitted to intervene and they made a motion for summary judgment. On relators' motion to dismiss intervenors' motion for summary judgment, the Supreme Court, Richards, C. J., held that the method of proceedings in mandamus in the Superior Court prescribed by statute could be followed in mandamus proceeding instituted in the Supreme Court and that application of Rule 56(b) of the Superior Court providing for summary judgment would not contravene such statute.

Motion to dismiss motion for summary judgment denied.

See also, 83 A.2d 762.

Page 760

[46 Del. 363] Petition by the Relators setting forth that they are citizens of the State of Delaware and residents of Sussex County; that at [46 Del. 364] the biennial General Election held in said County on November 7, 1950, each was a candidate on the ticket of the Republican Party for County offices; that by reason of certain alleged fraudulent and wilful violations of the election laws by the Board of Elections in the Second Election District of the Third Representative District of Sussex County approximately two hundred eighty-four illegal votes were offered, voted, counted and intermingled with legal votes cast in said election district; and praying that a peremptory writ of mandamus be issued directed to the respondents, commanding them to reconvene the Superior Court of the State of Delaware in and for Sussex County, constituting the Board of Canvass, in and for Sussex County, and publicly ascertain the state of the election held in Sussex County on November 7, 1950.

Granville C. Boyce, Woodrow W. Morgan, Charles F. Hudson and Reuben L. Savage all of whom were candidates on the ticket of the Democratic Party at the said biennial election were granted permission to intervene in the case and their petitions were duly filed for that purpose.

The interveners made a motion for summary judgment.

The relators now move to dismiss the interveners' motion for summary judgment for the following reasons:

(1) a motion for summary judgment is not available to either party in a petition for writ of mandamus;

(2) a motion for summary judgment is not available to either party in any action not based on a claim for the payment of money whether liquidated or otherwise, or for lands or chattels;

(3) a motion for summary judgment is never granted where there is a material issue of fact.

The only question now before the Court is the motion to dismiss the motion for summary judgment.

Daniel J. Layton, Jr., Georgetown, for relators.

James M. Tunnell, Jr., Georgetown, for interveners.

Before RICHARDS, C. J., TERRY, J., and SEITZ, Vice Chancellor.

[46 Del. 365] RICHARDS, Chief Justice.

The first and second reasons relied upon are based upon Rule 56 of the Superior Court and ...


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