Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Melson v. Court of Chancery In and For New Castle County

Supreme Court of Delaware

September 29, 1967

Elwood F. MELSON, Jr., and Grace Melson, Petitioners,
v.
The COURT OF CHANCERY of the State of Delaware, IN AND FOR NEW CASTLE COUNTY and the Honorable Isaac D. Short, 2nd, Sitting as a Vice Chancellor of said Court, Respondents.

Page 441

Upon petition for writ of prohibition. Denied.

William E. Taylor, Jr., Wilmington, for petitioners.

Nathan P. Michlin, Wilmington, Admr. C.T.A. of the Estate of Julia Nelling Clay, Intervener, in person.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

PER CURIAM:

In a proper case, where a fair and impartial trial requires it, a writ of prohibition may issue to prevent a disqualified judge from proceeding with the case. Matushefske v. Herlihy, Del.,214 A.2d 883, 886 (1965); Annotation, 92 A.L.R.2d 306. This is not such a case. [1]

The petitioners contend that they will be deprived of due process of law if the present Trial Judge continues in the case here involved. We disagree.

The background of the situation appears in Melson v. Michlin, Del.,223 A.2d 338 (1966). It will be noted there that the Trial Judge granted summary judgment against the petitioners. Upon the reversal and remand for trial, the petitioners moved for disqualification of the Trial Judge on the ground that he had prejudged the case, as evidenced by his conclusion that there was no genuine issue of material fact and that the petitioners' opponent was entitled to judgment as a matter of law.

The Trial Judge declined to disqualify himself, stating that nothing had occurred indicating to him that he could not consider the case objectively. The Trial Judge stated, however, that he considered the factual issues raised by the opinion of this Court to be of sufficient importance to require that they be submitted to a jury. [2]

Under the circumstances, it is unnecessary for us to rule on the petitioners' contention that a judge who has granted a summary judgment, reversed on appeal and remanded for trial, may be so prejudiced that a fair and impartial non-jury trial of the case is impaired. Here, the Trial Judge has announced his intention to have the factual issues decided by a Superior Court jury presided over by another judge. Under those circumstances, as we think the petitioners have conceded at oral ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.