Wiener v. Wiener

83 A.2d 749 (1951)

WIENER v. WIENER.

Civil Action No. 535.

Superior Court of Delaware, New Castle.

October 25, 1951.

Clair J. Killoran, Wilmington, for plaintiff.

Joseph H. Flanzer, Wilmington, for defendant.

Before CAREY and LAYTON, JJ.

LAYTON, Judge.

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 unprepared to meet. This ruling is clearly within the court's discretionary power. Rule 6(b).