Action by Anita N. Wiener against J. Allen Wiener, sometimes known as Jack Wiener, for divorce. The plaintiff moved that, for failure to file an answer, the defendant be denied the right to appear and defend. The Superior Court, Layton, J., held that filing of an answer was required whether the defense consists of a general denial or matters sounding in confession and avoidance, or both, but that defendant would be permitted to file an answer, in view of fact that this was the first interpretation of the rule of the court.
Order in accordance with opinion.
Upon first interpretation of court rule regulating answers in divorce actions, ruling that defendant should be permitted to file answer after expiration of prescribed time and be let into trial, subject to plaintiff's right to move for a continuance should the answer raise any defense which plaintiff might be unprepared to meet, was within court's discretionary power. Rules of Superior Court, rules 6(b), 104.
Plaintiff filed an action for divorce against defendant upon the ground of extreme cruelty. Defendant entered an appearance within twenty days of service upon the defendant but filed no answer. On the day of trial, plaintiff moved that defendant be denied the right to appear and defend for failure to file an answer. [46 Del. 344] Plaintiff's motion is based upon Rule 104 of the Rules of Superior Court which reads: ‘ Rule 104. Answer in Contested Divorce.
‘ If the defendant in a divorce action shall desire to defend the action he shall serve his answer twenty days after personal service or service by publication. The failure to serve an answer shall not entitle the plaintiff to a judgment by default and upon defendant's failure to file an answer, the cause shall proceed to trial as provided by statute.’
Defendant contends that Rule 104 does not require that an answer be filed but, if it does, he prays for permission to file an answer and be let into trial for the purpose of defending the action.
Clair J. Killoran, Wilmington, for plaintiff.
Joseph H. Flanzer, Wilmington, for defendant.
Before CAREY and LAYTON, JJ.
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 Pennewill 442,67 A. 853; 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 ...